Syndication

When I posted my item on "The Terrible Secret of Livejournal" in 2007, it attracted a lot of comments. I've since changed the code that runs my Web site, and it's not easy to import those old comments as regular comments in the new code; but I wanted to preserve them, so I'm posting them here in the form of another entry. New comments are disabled here; you should add them on the concluding page of the article.

trythil from 207.67.66.160 at Tue, 07 Aug 2007 05:15:00 +0000:
Thanks for writing this. I don't think I've properly digested it all, but it's still made me start reflecting more critically on fandoms I engage in.

The fact that sites that explicitly deal with this sort of stuff -- fanfiction.net and animemusicvideos.org, to give two specific examples -- haven't actually been hit _that_ hard (absolutely speaking) still amazes me. (At least, I don't think fanfiction.net has been too vigorously attacked...)

Nicholas from 24.69.207.134 at Tue, 07 Aug 2007 05:47:31 +0000:
Isn't the situation in Canada muddled by the Sharpe Decision? Last I heard, that was still on the books - and Sharpe's particular blend of erotica certainly seems to me to have less literary merit than middle aged housewives writing "Snape-fists-Harry-while-he-angsts-over-Hermione-blowing-Ron-high-on-wizard-cocaine" fic - not by MUCH, but there you have it.

Matt from 67.158.78.159 at Tue, 07 Aug 2007 13:29:57 +0000:
trythil - Yes. Right now it's all a tempest in a teapot. Nobody in the real mainstream really has any idea of what goes on in fandom; that's the advantage to drawing a line and separating ourselves. But I think it's quite likely that some time in the next few years there'll be some kind of big leak, when someone with more power than sense happens to see the wrong thing on the wrong Web site, and a witchhunt ensues. I feel like we've dodged a lot of bullets and it can't last forever.

Or maybe it can. Fandom *has* existed for decades already, after all, and pretty soon the people in power with young children will be people who were born after the ascendancy of the Net. Today's MySpace users won't support an anti-MySpace purge when they grow up. But even if current furor over social networking sites dies down uneventfully and never comes back, I'm concerned that there's a big gap between fandom and the really mainstream communities like MySpace.

Nicholas - the exceptions created by the Sharpe decision only applied to materials the creator held for personal use. Anything shown, or meant to be shown, to other people - which would include all the stuff posted to a Web site like Livejournal - fell outside the exceptions and remained illegal.

That's another example of people mistaking their desires for the law. We'd like to believe that the Supreme Court threw out the child pornography law; even the Conservative Party wants to believe that, because they want an excuse to hate the Supreme Court; but it just didn't happen. The law remained extremely repressive even immediately post-Sharpe. Also, see the Beattie decision (linked from my name on this comment, as well as above). That was decided on the post-Sharpe law, and it sure sounds like the material involved was well within the range of what some fanfic includes.

Also, the statute has been revised a fair bit since Sharpe, with the specific goal of closing (what some people call) the "loopholes" created by the Sharpe decision. They've added, among other things, a prohibition on written material that describes and doesn't advocate. It seems to me that the newer rules will almost certainly be overturned as unconstitutional eventually, but they haven't been yet, and "Matthew Skala thinks the law is unconstitutional" isn't going to save anyone from getting in a lot of trouble if they break the law.

The pre-Sharpe law was bad, the post-Sharpe law was only marginally better, and the current law is significantly worse than the pre-Sharpe law. And, of course, this is all in reference to the Canadian law (only of limited relevance to Livejournal and its US-based members), and the copyright and trademark issues remain.

cernael san from 82.209.147.100 at Tue, 07 Aug 2007 13:47:14 +0000:
Typo, in last paragraph before Conclusion: "Six Apart as the enemey"

Matt from 67.158.78.159 at Tue, 07 Aug 2007 14:00:04 +0000:
Thanks. I have a few other minor things to fix and tweak (links to add, etc.) too, but it may be a few hours before I put them in because now I'm late for school...

Vilhelm S from 217.146.104.65 at Tue, 07 Aug 2007 17:51:22 +0000:
Hm. I think I'll be the one to add the obligatory "NO! That cannot be! It can't be ILLEGAL!?" comment. :)

First, the copyright issues are surely a red herring. Yes; fanfics and fanart are copyright infrigments, but that not what Six Apart are targetting with their strikethrough efforts. (Having "incest" in your interests presumably does not make you more likely to infringe copyrights).

In any case, though the Youtube lawsuit might muddle the waters a bit, I thought the idea was that as long as Six Apart honors any takedown notices sent to them, DMCA shields them from responsibility. In particular, they should not have any duty to preemptively hunt down copyright infringers.

Secondly, the child porn. I have no doubt that naughty Harry Potter fiction might be illegal in chilly Canadia (and Canadian readers could presumably be prosecuted), but that should not affect Six Apart, who are based in the Land of the Free, down south.

US law was indeed "designed to criminalize visual depictions of persons under 18 engaging in sex acts, including persons who don't exist and only look under 18", but that was struck down as unconstitutional. And I don't think anyone has even *tried* to criminalize written works?

Note that there are US sites, e.g. ASSTR, that successfully operate a "no censorship" policy without suffering century-long jail sentences. If they can do it, surely LiveJournal could too if they wanted to.

So I still think that the strikethrough efforts are done just to avoid bad publicity, rather than for actual legal reasons.

Nicholas from 24.69.99.194 at Tue, 07 Aug 2007 18:34:12 +0000:
Vilhelm: I think that Matthew's argument is that the stuff on ASSTR probably IS illegal too; it's just that nobody cares enough to prosecute. I imagine that the reality of the situation is that nobody actually cares enough about ASSTR to bother suing them. Correct me if I'm wrong, net.historians. In the case of LiveJournal, it seems somewhat more likely that somebody might bother trying to prosecute, simply because it's an entity that is not exclusively designed for sexual deviancy.

Personally, I'd like to see somebody try suing a Harry Potter fanfic writer. At least that way there'd be one court ruling that mentions Snape's penis.

Matt from 129.97.79.144 at Tue, 07 Aug 2007 18:47:49 +0000:
"Six Apart isn't targetting copyright infringement": how do I know that? All I have to go on is the rumours, and the rumours come n-th-hand through people who deliberately blind themselves to what is or isn't copyright-infringing and what is or isn't child pornography. I can't say with certainty what Six Apart is targetting. I bet they're quietly complying with any DMCA notices they get.

Preemptively hunting down infringement: I don't think they're doing that with copyright OR child porn. I think they're only responding to specific complaints. They have publicly stated that that's the case, and it's what they would logically want, so I think there's every reason to believe they're telling the truth on that point. If they're responding to complaints, and they get far more complaints about alleged child porn than about alleged copyright infringement, then it'd be the case that they would suspend far more people for alleged child porn than for alleged copyright infringement, and it wouldn't have much to do with their own policy preferences.

It's perfectly reasonable that they would get far more complaints about alleged child porn than about alleged copyright infringement, because there are more people who care: only the copyright holder for a given property cares about copyright infringement, but ANY conservative nutbar cares about child porn. See my above comments about fandom itself being a perversion by mainstream standards. The relative number of complaints determines the size of the response, but it's unrelated to the actual scale of the rule-breaking.

Bear in mind that suspending large numbers of people is also a big image problem for Six Apart. It hurts their image with fandom ("Oh, Six Apart are evil censors!") but it also hurts their image with the mundanes ("Oh, Livejournal is FULL of perverts, look how many they're catching!"). Six Apart would *much* prefer to have this content go unnoticed and just leave fandom alone. They're only suspending people when they think they're forced to - by complaints and threats from outside.

I've not been following the US legislation and case law on child porn carefully (Canada is a higher priority for me) but it sure looks like it's a similar situation to Canada - much more repression in the law than people realise, and court decisions that people want to think involved throwing out the law, but didn't really. The December 2005 conviction of Dwight Whorley included both hentai anime and text-based email messages; there were other factors involved in the case, including a probation violation and some photographs of real children, but the convictions on the fictional material weren't dependent on the non-fictional material. Wikipedia's articles on "Dwight Whorley" and on "Lolicon" contain good references for this case.

That would suggest that some text is already illegal in the USA. As for whether anyone has "tried" to make it illegal, I guess that depends what you count as "anyone" and as "trying." Organizations like Focus On The Family, and of course Warriors For Innocence, have certainly made noises about outlawing text-only child pornography. I'm not sure how far such proposals have gotten in actual legislative bodies.

I believe that the shit is going to hit the fan with ASSTR some day. I don't want to encourage people to start naming names here of Web sites that seem to be breaking the law without getting in trouble, because if those sites came to the attention of the forces of evil, I'd hate to think that I was part of causing that. We're not really among friends here. People outside of fandom will read this article and these comments and they will want to look up any sites we mention.

Nonetheless, you know and I know and trythil knows and everyone in fandom knows of many good examples of sites that are posting the kind of material I think is illegal, without getting in trouble for it. Fandom people want to believe that that's because that material really is legal and nobody *can* get in trouble for it. I think it's just that so far, they have escaped mainstream notice. They won't escape mainstream notice forever.

Remember how Napster escaped notice as long as it was only computer geeks using it? Remember the excuses people made at that time for why Napster was legal? Remember what happened when Napster became big enough that non-geeks started using it in a big way?

I've kept out of the whole fandom community etc. debates. Of more concern to me from the outset was the targeting of support groups based solely on name and/or interest with no attempt to find out the purpose for such groups.

I agree that publishing derivative works for copyrighted materials is illegal, certainly in the US and probably many other countries. The question arises in the language of the law as to whether writing derivative works is illegal, or only publishing them. And then you have further define, if it's (only) publishing the works, what constitutes publishing. I imagine at some point a legal body will be forced to make register a decision, (if it's happened already, I don't know about it) that will define publishing. Producing such works for personal use may not be considered publishing.

This may venture in your arena of legal sophistry mentioned in your previous post, but it's possible that personal blogs may not be considered publishing because the nature of a personal blog is personal, or may be considered publishing because the nature of a blog is uncontrolled public access.

On a personal level, I've tried to keep my derivative personal works on the level of parody so as to invoke the cloaking protection of "fair use." In the realm of collaborative fiction (online RPGs specifically), I don't have that cloak, but I accept that what I'm doing is probably illegal.

Marci from 65.196.47.130 at Tue, 07 Aug 2007 20:30:37 +0000:
PS: Sorry for the embedded HTML in previous and, although it's probably silly of me, I'm glad you removed you very targetting at me wording to replace it with the more general "you" which I can at least pretend refers to someone else.

One thing I was wondering... might have nothing to do with the current banning, but did have to do with the banning in the past where they banned people according to interests such as one community in particular that was discussing the book, "Lolita".

So, how does that law dealing with fictional underage children + sexual situation relate to novels such as "Flowers in the Attic", "Lolita", etc... as I understand that the article says that fanfics are pretty much screwed in the legal department... is that the same for the novels?

Matt from 129.97.79.144 at Tue, 07 Aug 2007 22:54:25 +0000:
Well, first of all, a lot of fandom material is a lot more explicit than Lolita, and there's a big difference between a work that contains sexual situations and a work that consists entirely of sexual situations. However, I also think that if it were first published today and wasn't already a literary classic, there might in fact be serious allegations that Lolita ran afoul of the current child pornography laws. In the 1950s when Lolita came out, it upset people just for being "pornography"; there wasn't a moral panic over "child pornography" in progress at that time. Nowadays, we're especially sensitive to anything related to young people and sex.

I think Lolita would definitely be banned under the Conservative Party of Canada's proposed child pornography standard ("appears to depict or describe"); fortunately, they have a snowball's chance in Hell of getting that one past the Supreme Court.

Note - ever tried to read Nabokov? He has a very formal, almost academic, writing style. It's obvious at a glance that his work is intended as capital-L Literature. Fanfic tends not to be written in that tone. Fanfic often reads like a semi-literate teenager's sex fantasy. That kind of artistic criticism shouldn't make a difference to the legality of written material... but to the humans who make the decisions, it does.

It's also a fact that anything on the Net will be viewed much more harshly than anything printed in a book. That doesn't make a difference in most of the statutes, but it DOES make a difference for the judges, prosecutors, and juries, and they're part of the law too. I think there's a double standard in practice, with the Net treated more harshly.

I think people creating new material at the same level as Lolita and posting it on the Net are in serious risk from the current laws; and current fandom practice goes far beyond the level of Lolita (I can't comment on Flowers in the Attic, I'm not familiar with it); even if people merely having bound printed copies of Lolita are probably reasonably safe.

Tom from 216.153.159.218 at Wed, 08 Aug 2007 14:17:11 +0000:
I'd very much like to hear how you reconcile your opinion that almost all fanart & fanfic is illegal with the principle of Fair Use. Fair Use may be diminishing in its potency lately, but I'm pretty sure it still applies to at least some of fan-created works.

Matt from 67.158.78.159 at Wed, 08 Aug 2007 14:31:09 +0000:
I didn't say "almost all," I said "a lot" - but it's very simple. Fair use is about writing a review. Fanfic isn't. There's a very big difference between "Here's my opinion of the latest book, with some illustrative quotes," and "Here's my latest new story about Ginny, Tonks, and Mary Sue." Even if you don't see a difference, the courts will.

Fair use does indeed apply to "at least some" fan-created works, as you say; fandom is a very big world and you can find at least some examples for almost any claim. But there are also a lot of fan-created works that go far beyond what fair use permits. My point is that many of the works fans consider perfectly okay, and believe to be perfectly legal, are not legal and not borderline. If Livejournal content were cut back to only what's really allowed by fair use, that would make the last couple rounds of bans look like a Hogwarts picnic.

fragiletender from 87.194.194.195 at Wed, 08 Aug 2007 15:12:39 +0000:
"We're all in this mess together, and it's not other people. It's your friends. It's you, [info]fragiletender. A lot of material, even in what fandom thinks of as its mainstream - including material that you like to read and look at - is illegal. That's the terrible secret of Livejournal."

Actually, it's NOT me because I have said repeatedly and publicly that I do not read or write fanfic. Nor do I draw or look at fan art. Not now, not ever. It does not interest me and never will: quite frankly, I think it's derivative, unoriginal and pointless. Nor am I a member of any fan communities, either on the internet or real life.

So unless you're stating that I am somehow suspect because I read published science fiction and like several cult shows or have publicly objected to Livejournal's cackhanded handling of this whole affair, then quite frankly I fail to see why I have been personally singled out in this post.

When I leave Livejournal, as I intend to do when my paid account runs out in December, it will not be because 'OMG, fandom is soooooo unfairly treated', it will because I think that the LJ management couldn't organise a piss-up in a bloody brewery.

fragiletender from 87.194.194.195 at Wed, 08 Aug 2007 15:22:26 +0000:
Damn, apparently I just posted something totally stupid since you apparently have some kind of weird script running that inserts the reader's name into the page.

I therefore apologise for being a complete twit and taking in personally. In my defence, I've had insomnia for weeks so I'm kind of running on empty and I've never seen this particular innovation before. In addition, I've had at least one person linking to me in an uncomplimentary and inaccurate way because I've been reporting on this story, so I guess I'm just a little bit jumpy and defensive.

The rest of my comment stands though, I'm really not personally affected by all this, I'm just a dissatisfied Six Apart customer.

Lis Riba from 24.41.22.62 at Wed, 08 Aug 2007 16:21:05 +0000:
IANAL, but some people have spoken of Safe Harbor provisions; suggesting that as long as LiveJournal *didn't* make editorial judgments about the content on its site, they were covered. But once they start pointing out specific works as unwelcome, they are subject to much higher standards of liability.

How does that fit into all this?

Matt from 129.97.79.144 at Wed, 08 Aug 2007 16:32:14 +0000:
As I understand it, that's primarily relevant for the copyright issues, not the child porn/obscenity issues. (Some people elsewhere have been commenting that I'm full of shit because the material I'm talking about isn't child porn, it's obscenity. That's not going to make a difference to anyone in the mainstream!) Anyway, Six Apart does seem to be leaning heavily on the DMCA's safe harbour provisions for copyright infringement, which say that they're okay if they remove illegal material once they find out about it and not before.

I'm not sure the same applies to child porn/obscenity - I'm not sure to what extent there IS a safe harbour for that in the USA (there's one in Canada) - but it appears that they're trying to follow a similar policy, notwithstanding the things they've said in their most recent PR material about being willing to remove material they object to even if it's not actually illegal. I think they're trying hard not to take a definite stand on whether individual items are legal or not. If they did, they'd be forced to either say "that's legal" to something that isn't, or "that's illegal" to something that fandom considers acceptable, and either of those would be a big problem.

elfwreck from 208.15.6.2 at Wed, 08 Aug 2007 16:41:22 +0000:
You are so very wrong in your basic premises.

You say, "Harry Potter is a child in the eyes of the law."

No. Harry Potter is a *fictional character* in the eyes of the law. Fictional characters *have no legal rights.* None. Note that, according to this logic, JKR is guilty of the murder of Cedric Diggory. (And Harry Potter, if one wants to get weird about it.)

You say, "The words "child" and "pornography" do not magically stop having their ordinary meanings when you put them together."

No, but the laws that address "child pornography" are very specific and detailed, and DO NOT include furries, or other fictional characters. You are conflating "child pornography" with "pornographic obscenity related to children"--the average Joe Whitebread may not acknowledge the difference, but the Supreme Court does.

You say, "Pro-anorexia is legal, even if it horrifies you. Child pornography and copyright infringement are illegal, even if you like them."

1) Promoting anorexia is not legal; it's promoting a mental disorder that kills 20% of its victims. Anorexia *support* is legal... but notice how many of the rape support communities call themselves "pro-rape?" Riiiight.

2) Child porn & copyright infringement are indeed illegal... but there is no case, no law, establishing that the fanfic and fanart we love is either. You are assuming that since those laws are *relevant to the discussion of legality* of fanfic, that they are guilty.

An analogy: Interfering with police business is a crime. Shouting at a policeman may or may not be interfering with police business, depending on exact circumstances. That does not mean "shouting at cops" is a crime.

Lexin from 88.109.138.163 at Wed, 08 Aug 2007 17:18:36 +0000:
While I agree with much of what you say, I'm wary about the term 'illegal' and suggest you try ill "ill-advised". Illegal is value-laden, and used by lawyers very sparingly, and I'm not completely sure you're using it technically correctly.

I refer you to this: http://legionseagle.livejournal.com/13718.html which explains why.

Lila Futuransky from 69.230.206.40 at Wed, 08 Aug 2007 17:20:00 +0000:
I really appreciate this post; one of the things that has been driving me mad in the recent debates is the widely held, naive assumption that the law must be *right*, that the police and the legal system are there to *protect* them. It's largely due to the privileged demographic which is prevalent in the sections of fandom expressing most vocal outrage, I think: people for whom being a geek and a fan is the only stigmatized identity they hold, so they're horrified to think that something they like might be illegal or disapproved of.

Now, I am not as convinced as you that the mainstream is equivalent with right-wing Christian America; I think there are probably ways to explain fannishness that don't make us look completely insane. I also think that fandom would do best to ally with other subcultures and movements against unjust laws, if it could, rather than taking its stand alone and stigmatizing other groups (I don't mean child abusers here, but perhaps others whose sexual practices hurt no one and yet are demonised because of the danger they pose to hypothetical children). But that might require some sections to give up certain insistence on self-righteousness...

Ash from 74.236.3.235 at Wed, 08 Aug 2007 17:28:09 +0000:
The only problem with the pro-anorexia thing is that LJ/6A has specifically stated that communities, or postings in general, that encourage self-harm are in violation of their TOS. Most everyone would agree that encouraging minors to starve oneself to death, and giving tips on how to hide the fact would qualify as self-harm. If Livejournal is going to enforce their TOS for illegal fandom works (and my brother is in law school and specializing in copyrights, so the whole area is quite messy and there are a lot of gray areas, talking about derivative works, etc) then it should enforce the TOS on those other communities as well. And incidentally, Barak Berkowitz heavily implied that fanfic is okay, but fanart is not. It's in one of the lj_biz posts.

Matt from 129.97.79.144 at Wed, 08 Aug 2007 17:28:25 +0000:
Let's get started on *finding* those ways of explaining fandom that won't make us look completely insane! Surely for a movement that contains so many writers, artists, and other creative people, we ought to be able to communicate a concept like that a lot better than we've been doing.

Barbayat from 89.48.98.98 at Wed, 08 Aug 2007 17:33:01 +0000:
I would make a stand, but I don't live in the USA *danceshappily*

hollabackgirl from 67.174.249.33 at Wed, 08 Aug 2007 17:34:47 +0000:
i don't think 6a can give a 'warning' if a journal
is flagged for cp, the Law says they need to make it
disappear immediately, no warning.

Elanna from 71.202.16.229 at Wed, 08 Aug 2007 17:41:30 +0000:
I agree with pretty much everything that you've said. I am aware of how most people in the U.S. perceive those of use who are members of fandom, even those whose participation is relatively innocuous, for example people with an obsessive interest in a particular movie/show/comic, or Trekkies who enjoy dressing up as their favorite character and going to cons.

That's the reason I (and I suspect many of us) choose to participate under a pseudonym. It's why I lock even the relatively small percentage of fannish content that I post in my lj.

My primary objection to the way 6A/LJ handled the deletions is the lack of warning and the permanent nature of the deletions. I'm quite sure that if informed that their content was not allowed, both artists would have removed it. Even if LJ had deleted the content for them, that would have been fine too. I totally understand and support their desire not to have illegal material -- especially once it has been reported -- on their servers.

There are questions as to whether the material was actually illegal (and I agree the fannish context is different from the context in which mainstream America would view the material) but even still, if LJ had only asked for it to be removed I don't think there would be half the firestorm there is now.

IMO, that -- along with a certain ineptitude at PR -- is the crux of the matter. People love lj, we love the communities we've built there, we love the journaling system. I would even go so far as to call myself an addict. The thought that it could all be gone like *that*, with no warning and no opportunity to appeal, that we could be banned for life over something we weren't even aware was unacceptable to 6A/LJ is deeply upsetting. (Even though yes, that's the risk we take, that's 6A/LJ's right, it still sends a terrible message to customers.)

sovayfox from 72.70.240.142 at Wed, 08 Aug 2007 17:42:34 +0000:
This isn't really about fandom anymore. Fandom wants to claim the issue as theirs as do others but it isn't. Many outside fandom feel that LJ is using subpar business practices and bad legal precedents. I really do not get why people think fandom are the only ones who care that LJ isn't run well anymore. I could care less about the porn as I don't find porn worthwhile.

Tina from 87.49.78.102 at Wed, 08 Aug 2007 17:58:49 +0000:
I've read this and can't argue about the laws. I don't know what the copyright laws of US is, or UK for that matter.

You are however very wrong on a few points.

Harry Potter is a fictional character, and the whole debacle has been centered around visual representation that is 'not' photographical, in which case - and I've seen this quoted enough to know it - this doesn't belong under the the law qouted.

Another thing, which you would've known if you'd actually read the last Harry Potter book. I'm not even in fandom, but I've heard enough about the book to know this.

Harry Potter does very much grow up in Jo's eyes, and also in his fans eyes. Jo made very sure about that by writing an epilogue that takes place 19 years later, where Harry is married and has children. So I would say your arguement in this case isn't valid either.

It also seems to me that fandom isn't asking LJ/6A to make a 'stand' against the laws, since the vast majority find those laws good and want real children protected. They're asking for a clarification which I haven't seen LJ/6A provide. They're asking for LJ/6A to state clearly what it is they do not want on their servers. They haven't provided this. They have instead gone against their own promises and reassurances and their stated protocol in connection with suspending users.

This is why there is anger.

Calling it whining is insulting, even to me who in this case stands as an outsider, watching.

Elanna from 71.202.16.229 at Wed, 08 Aug 2007 17:59:08 +0000:
To be clear (with reference to my comment above), I understand that once the material has been reported, if it is found to be in violation it must be removed immediately.

My point is that I think there would have been a variety of ways to go about it which would have had the desired end result without the outrage that resulted. For example, 6A/LJ could have suspended the journal until the art was removed or even removed the art itself and then reinstated it.

I haven't yet seen a satisfactory response from 6A/LJ as to why it was necessary to not only suspend the journal in question but also all other journals the owners had created and to permanently ban them from ever creating any more. That response seems extremely heavy handed and disrespectful to say the least.

Maryam from 70.108.81.116 at Wed, 08 Aug 2007 17:59:48 +0000:
>Let's get started on *finding* those ways of explaining fandom that won't make us look completely insane! Surely for a movement that contains so many writers, artists, and other creative people, we ought to be able to communicate a concept like that a lot better than we've been doing.<

Absolutely, perfectly put.

claire from 172.188.134.27 at Wed, 08 Aug 2007 18:05:31 +0000:
I'd like to see you address elfwreck's (16:41:22) comment, please.

Flora from 128.223.92.25 at Wed, 08 Aug 2007 18:10:48 +0000:
I'd submit that not very many people think the pro-ana sites are illegal so much as that they are equally against the LJ TOS in the sense that they fairly actively promote harm, and the TOS suggests that promoting harm to others isn't allowed. This is the argument I've seen, but of course, since many of them lock their content and I feel it would be ethically objectionable for me to represent myself as one of their number just so I could see and report locked content, I can't actually point at individual entries, and I reckon that's the problem. I think I agree with you that LJ doesn't want to attempt to police anything that hasn't been specifically brought to their attention, and that at this point that means individual posts rather than comms as a whole.

Matt from 129.97.79.144 at Wed, 08 Aug 2007 18:36:57 +0000:
claire: elfwreck is confusing his/her idea of what's right with what the law actually says, and I've already written a 5000-word essay about that.

Danny from 68.151.33.160 at Wed, 08 Aug 2007 19:06:24 +0000:
> Six Apart has consistently sent the message that they don't take
> Livejournal users seriously and they don't value Livejournal
> users, and far too much of what they've said - and failed to say -
> in this recent series of episodes has contributed to that message.

for some of us, that's the problem. that's the ONLY problem.

claire from 172.188.134.27 at Wed, 08 Aug 2007 19:07:13 +0000:
Matt: Where? You've repeatedly stated the law as you interpret it here, but I see no law specifics in your essay. Fandom is confused about 'child pornography' and 'obscenity'. I've seen explicit essays that analyse the two laws and which law applies to fictional art. Prevalent in fandom is the conclusion that child pornography laws do not apply to fictional characters, but that obscenity laws do. For my own piece of mind and clarity, I'm deserately seeking the specifics of the child pornography laws that state that fictional characters can be classed as child pornography in the same way that images of real children can.

I read for myself at the First Amendment Centre (http://www.firstamendmentcenter.org/Speech/arts/faqs.aspx?faq=all) that "“Child pornography” is defined as sexually explicit images of actual minors or based on actual minors. Images of youthful adults, and *images of children who have never existed in the real world, are not child pornography under the Free Speech Coalition ruling.*"

So, if you want to pass over a link at which you have discussed this in detail with actual references to law, that would really help me. Thanks.

Bryant from 70.42.62.254 at Wed, 08 Aug 2007 19:16:17 +0000:
"Harry Potter does very much grow up in Jo's eyes, and also in his fans eyes. Jo made very sure about that by writing an epilogue that takes place 19 years later, where Harry is married and has children. So I would say your arguement in this case isn't valid either."

Would you argue that the images in question would not have been drawn prior to the publication of the seventh book? If not, well... you can't really hold the seventh book up as a defense.

Matt from 129.97.79.144 at Wed, 08 Aug 2007 19:24:01 +0000:
For Canada, see the Supreme Court decision in R. v. Sharpe, paragraph 38: http://scc.lexum.umontreal.ca/en/2001/2001scc2/2001scc2.html
as well as the Ontario Superior Court decision in R. v. Beattie, linked with commentary from here:
http://ansuz.sooke.bc.ca/lawpoli/free-expression/r-v-beattie.php

For the USA, see 18 U.S.C. (section) 1466A(a)(I) and 18 U.S.C. (section) 1462, which are discussed in detail by Department of Justice attorneys in the article starting on page 49 of this PDF file:
http://www.usdoj.gov/usao/eousa/foia_reading_room/usab5407.pdf

Note that the Beattie and Whorley cases both involved convictions, not just prosecutions, for fictional, not just real-photographic, material, including text. Neither conviction has been successfully appealed to date. Whorley's has an appeal in the pipeline.

Clare from 71.225.135.51 at Wed, 08 Aug 2007 19:49:10 +0000:
I agree with Claire above (we're not the same person, I promise!) as well as most of your essay--and lots of other comments, oh dear. However, your essay does raise one other question in my mind, which I'm sure you can't answer but maybe you or someone else will have some insight: Why now? LiveJournal has quietly and (apparently) contentedly hosted all sorts of fandom materials for years. I think that's a big part of the problem--if it had said explicitly from the beginning that it would not host what it doesn't want to host, people wouldn't be nearly so upset now. Even, and perhaps especially, if "what it would not host" is "anything illegal [including copyright violations] if reported." Because then everything would have been protected from the beginning so that only fandom would be able to see it. (Um, not sure I worded that optimally, but you still see what I mean, I hope!)

I am questioning this point - and I quote: 'Harry Potter will always be a child in the eyes of Joe and Mary Whitebread, representing the real (not fandom) mainstream who didn't read your 10,000-word explanation of how he grew up to be an adult.'

If they've read the book, and also if they in fact think rationally, using earth logic and laws of nature in reality, they would know people actually 'do' grow up. Just because a book stops at some point, doesn't mean a certain character will remain in the same form forever, even if that 'fictional' life isn't on the page.

Don't make people dumber than they are. I saw the picture and the explanation as to how old the characters were and in what connection it was drawn, my first reaction was:

Harry and Snape ... ick, why??

My second reaction was:

But there are no minors in the picture, that's clearly stated and I'm not seeing anything to dispute that when taking the artistic style is taken into consideration - which also makes a 40+ years old Snape look young.

My third reaction:

This does have artistic merit even if I don't like it.

I know I'm just me, but I don't see myself as more clever or dumber than the average person. Perhaps I'm more openminded than most, or more educated (heading towards a Ph.D. in English Litt.), or whatever.

So, Joe and Mary don't have to read the 10.000 word explanation. All they need to do is actually look at the text connected with the picture in the community, indicating the details about the picture. Just like in a museum, you know? YOu look at artwork and think 'ey?' then you read the small explanation often displayed next to or under the artwork, and then you might go 'Aha.'.

Anyway. I'm subjective in this matter, as we all are. And I'm not saying that you have less right to your opinion as I have. This is my opinion and I'm not likely to change it.

jennem from 76.30.223.132 at Wed, 08 Aug 2007 20:12:05 +0000:
I think your "dirty secret" analysis would be much more believable (and helpful) if you actually cited to the law and explained your reasons for drawing such a conclusion. If the objective of your essay is to convince and enlighten people, you aren't doing a very good job simply because people will beleive what they want to believe until they are *shown* otherwise.

Without hard facts and evidence, your essay is an *opinion* that isn't very persuasive (and I'm already inclined to agree with your overall conclusion).

Sarah from 209.129.85.4 at Wed, 08 Aug 2007 20:12:50 +0000:
As a non-participant in fandom, my only complaint is that LiveJournal is breaking California business practice (consumer protection laws) which if I'm reading right is applicable to any business based in California (which they are).

Additionally, in the United States and California, drawings depicting pubescent minors (e.g. young teenager but hitting puberty) are legal as long as they are clearly distinguishable from actual child pornography. If they look so realistic that one cannot tell they are animated, then it is illegal. Ones that look so fake you have no trouble realizing they are not real children are not illegal. Even their own cited law states at the bottom:

(11) the term "indistinguishable" used with respect to a
depiction, means virtually indistinguishable, in that the
depiction is such that an ordinary person viewing the depiction
would conclude that the depiction is of an actual minor engaged
in sexually explicit conduct. This definition does not apply to
depictions that are drawings, cartoons, sculptures, or paintings
depicting minors or adults."

Harry Potter is not a real character, hence, any of his "distinguishing characteristics" are null and void. Since it was distinguishable and not based on a real character (and let's not forget the fact that the artwork in question was NOT of minors, fictional or not), technically it would only face copyright infringement (though Rowling and many other authors I've read on actually tend to be happy their characters are idolized so much). By California law it is not child pornography (or federal law). If it was, they wouldn't be able to sell manga or shota in bookstores. Which, they do.

Because of this clause, and a strike-down in 2002 (http://archives.cnn.com/2002/LAW/04/16/scotus.virtual.child.porn/) even if Harry had been 17 instead of 22 like he was in the artwork, it would have been legal except for the copyright.

However, the problem isn't whether or not LiveJournal allows cartoons of children in explicitly sexual positions. Users there have been frustrated with being called child pornographers wrongly, yes (especially since most of them do not draw underaged fictional characters... They are a very small minority).

LiveJournal has every right to censor whatever material they wish to being a private company. However, they have refused to reinstate journals that depicted adults in pornographic communities. They have only done so with male-on-male erotica. More importantly, they promised users that they would only be suspended permanently if something was blatantly illegal (and they're not including copyright). They have refused to clarify their TOS, or even update it to their new standards.

If, by being in California they are subject to consumer protection laws, then they have broken at least 3 laws to date - fraud and changing TOS without official notification, as well as enforcing their unofficial TOS that is described unclearly in the LiveJournal business community, but not in the TOS page.

And not to mention the terrible customer service, ignoring the issue for five days, as well as not responding to new questions shown in their community.

I understand in Canada cartoons depicting sexually explicit situations may still be illegal (and I find the stuff disturbing to look at) however, LiveJournal is only held to US Federal law, and California law where they are based, and banning cartoons was listed as too broad and constitutional. Even so, the rare people on LiveJournal who do create it usually only do so to already-existent stories... After all, it is "fan" art and "fan" fiction.

Matt from 129.97.79.144 at Wed, 08 Aug 2007 20:13:02 +0000:
I don't know, but some things to think about on that:

* Things were different before Six Apart came along. Danga Interactive was basically just one guy, and less likely to behave like a corporation.
* I think these kinds of bans have been going on at a low level for a long time. Each time there was some small chance of the greater community taking notice. Now is the time that they finally did take notice in a big way. It doesn't mean anything really new has actually happened.
* The mainstream's paranoia over social-networking sites is new for 2007; even in 2006 there was nothing like the current anti-MySpace legislative proposals. Before that stuff started, there was less likelihood of something like this blowing up the way it has.
* The decline in Livejournal's overall popularity is new too, though not quite so new, and that's making everyone more likely to see themselves as besieged.

Your question is like saying "How come the forest's burning down *now*? Plenty of people have dropped matches there before without starting a major forest fire. Every time before, they've burned out harmlessly." There've been many opportunities for this kind of mess to start, with only a small chance of it starting each time. Now, it finally has. That doesn't mean there's anything special about right now; it just had to happen sooner or later. On the other hand, forest fires become more likely in the Summer as the forest gets dryer... and right now, Livejournal's forest is dry as a bone.

Kate from 70.77.36.91 at Wed, 08 Aug 2007 20:20:54 +0000:
I really dislike the smug, superior sound of this post. I'm sorry, but what may seem a cool and objective essay to some because of all the legal jargon floating around actually feels quite biased and belittling due to some of the language used.

Firstly: For many of us, the real problem lies in the fact that LiveJournal and SixApart have a disturbing tendency to disregard the cares and concerns of their users, and continue display appalling customer service as well as publically flip-flopping on their policies; this, well apart from anything else, is enough to make me want to discontinue using LJ.

Secondly: Yes, Fandom is considered a perversion. So what? Homosexuality is considered a perversion by some groups. Dressing your significant other up in leather and whipping them could be considered a perversion, but as long as it's consensual it's perfectly legal, and no-one can say boo about it. I think what this article forgets is that not all of us are concerned about being considered deviants or perverts, and I think if you're involved in fandom at all, then you're probably not concerned, by varying degrees, about meeting the status quo, period. Whether or not someone is a "freak" based on what they do in their private life is a subjective, personal judgement, and whether or not "Joe and Mary Whitebread" approve is another matter entirely.
Pervert or not, myself and my fannish contemporaries deserve to be treated with the same respect as everyone else.

Thirdly, purely on whimsy, I would like to state that I think that writing fanfiction is a lot like smoking pot in B.C. - yes, it may be illegal, but posession of small quantities is not a criminal offense, and so many people do it and enjoy doing it that we don't really give two figs about the law.

Kuraino from 140.233.205.52 at Wed, 08 Aug 2007 20:29:35 +0000:
The following is copied from my LiveJournal entry:

If most fanworks are illegal (we've been over this before) then why is LJ only policing as of now? And why only random, specific entries/works/users? I'm still not completely clear on how illegal fanworks are, because so many sites accept them. If they're really downright illegal, why are they allowed in so many places? I dislike a lot of fanworks for reasons I've already discussed in here. But I can't understand, for example, why sites like fanfiction.net can even operate if all of fanfiction is blatantly illegal. Why hasn't it been shut down, if this is the case? Also, there doesn't seem to be any clear-cut laws regarding fanworks (although I'm a legalese retard okay so I'm probably just missing it) simply because sites like fanfiction.net exist. I'm uncomfortable with the thought of there being a law that says, "Fanfiction is illegal. Fanart is illegal," simply because of freedom of expression (I mean, I think most fanfiction is blasphemous and retarded, but I just don't read it. A law banning it would scare me).

I just fail to grasp why this is all suddenly a problem NOW. Has long has LJ been in operation? Why is this happening now and not before? Why does InsaneJournal and other websites make a point of "embracing" fandom if what they're embracing is so illegal? Many people have pointed out that LJ grew with the help of fandom. Fandom was embraced then, and now all of this comes to light? What the hell is with that? Is it simply 6A taking a corporate perspective? Trying to cover their asses? Whereas before 6A, no one had to worry about that? Why didn't they have to worry about it?

I do however very much agree with what she (she I believe?) has outlined that 6A has done wrong.

I do feel that 6A has been very sneaky and backhanded about a lot of this, and I don't like that. I don't like that users were given no warning; they simply lost everything in the blink of an eye. All writings, all comments they ever made—what if, god forbid, they hadn't archived any of that? I'd want to kill myself.

I was really afraid after the first strikethrough, where abuse victims were targeted and suspended. That was terrifying. I am a part of some abuse survivor communities and I do list some perhaps questionable interests, like "lesbianism," and "homosexuality." That I should even worry about being banned for these things is appalling.

I still feel that LJ needs to clarify what is okay and what isn't. They still haven't done that. From this article, the writer is saying that they can't, without opening up the whole "fanworks are illegal" can of worms. So is that really the heart of this issue? To me, the deletions seemed completely random; I mean what about all the OTHER art that's STILL there? And for once how about some heterosexual art? I don't want to pull the ZOMG OPRESHUN!!1! card or something, but it's pretty obvious these last two artists were banned for sexually explicit homosexual art. Do I even really want to think about what heterosexual art is also lurking on LJ? I mean seriously? Not to mention all the rest of the art that's still there? Why these two artists? Why randomly? Why none of the other artists that are even in the same community as them? I don't get it.

Don't get me wrong. I didn't like the art when I saw it. And when I heard what the artists were also said to have drawn, I wanted to be sick (Hermione being raped by Fenrir? WHO THE FUCK (1) GETS OFF ON THIS, (2) CAN BRING THEMSELVES TO DRAW THIS KIND OF ... DEAR GOD). I'll be perfectly honest with you: I don't want to see that garbage, and I probably wouldn't leave if the policy clearly outlined that all such art is not welcome on LJ. Because hey, I don't like it, I don't want to see it, so it doesn't really effect me.

But LJ has also failed epically in public relations. They make promises that they don't keep (re: announcement on Monday evening guyz lol!), they go back on their word/past policies without making such clear, they repeatedly post ambiguous and vague statement, and they even go to the level of MOCKING and insulting their customers.

LJ is simply the most advanced journaling site available, and has great customization. I don't want to leave here, I admit it. I shelled out so much money for this account. I don't want the money to be wasted. But LJ needs to get its act together. The article above is still a little confusing to me. I really just want some damn clarification on what's okay and what isn't. If that means "exposing the secret of fandom" then...well I don't really know. For one thing, look at . Would it count as fanfiction? I'm pretty sure it would. Telling me that I can't do that would be the biggest blow of all, and I consider myself somewhat justified as I go out of my way to research and attend to Tolkien's canon. I mean sure, we've got the crack in there too, but is it really hurting anyone? And most of it is f-locked? And we're not making money, not trying to publish it anywhere, hell we're in our own little place just giggling like morons—would that be acceptable?

And I don't really feel sure that the "secret" is that most of fandom is illegal, because this all seems to be about the "child porn" crap. But then LJ says it won't tolerate child porn, even though about five days ago it said that the pictures it deleted didn't qualify as child porn. OKAAAY, so wtf? But then it says it simply doesn't want to host it on its servers. OKAY, can you please be specific as to WHAT you don't want? ANYTHING involving someone under 18 in a sexual situation? But then there's the whole, "He's SUPPOSED to be 22! (But he doesn't like 22 to Mary, or Joe, but looks 35 to Steve)." That's called subjective. They say that they first take into account any accompanying material with the picture to determine age, but then, if there's nothing they basically use their "best judgment." Okaaay so like how is that going to make people feel safe? I mean can you just say something like "NOTHING NC-17 ON THE SITE, PERIOD," because otherwise people aren't going to be able to be sure THEMSELVES if what they're uploading will look under 18 to Mary, Steve, Joe and What's-His-Face. Because of that there's really NO WAY for artists to be secure. Essentially every post would be a gamble. Am I gonna get banned? Am I gonna get banned? TODAY am I gonna get banned?

There needs to be clearer guidelines. Lay it out on the table already! WHAT IS OKAY? I really prefer they look at the MPAA ratings and just DECIDE ON ONE that is the highest acceptable rating. Anything beyond that is out. FINE. That way there's criteria for people to follow and they can assess their artwork before uploading. Otherwise, they CAN'T know what the Abuse team is "going to subjectively think" and thereby CAN'T protect themselves. And since LJ is banning without warning or notification, they could simply try and log on and be told, "Lol, sorry but YOU JUST LOST...EVERYTHING you ever uploaded to this website, and even though we say you can try and appeal we never reinstate accounts anyway, so HAVE A NICE DAY <3."

That's NOT OKAY.

But now that max comments has been reached, I don't know when, if ever, they'll address the issue again. We are now stuck in the limbo of "if LJ feels like answering" once again.

Dear god this whole thing is such a fucking mess.

Matt from 129.97.79.144 at Wed, 08 Aug 2007 20:31:01 +0000:
jennem: "Actually citing" the law invites people to argue it. I'm trying (though, obviously, with only limited success) to make the point that it'll require more than a bunch of non-lawyers arguing about the statutes, to really make a difference on the important underlying principles here. I don't think there's any doubt as to the spirit of the law, and having an endless argument about the letter of the law only hurts us. The reasonable doubts and grey areas and loopholes that might possibly exist aren't things fandom can rely on as a first resort; that's not how law works. See my earlier "not magic" posting, which is linked from my name on this comment as well as above.

Kuraino from 140.233.205.52 at Wed, 08 Aug 2007 20:33:22 +0000:
Uh, sorry for the rampant caps, as its from my personal journal I probably should have edited a bit for here, my apologies.

Matt from 129.97.79.144 at Wed, 08 Aug 2007 20:35:24 +0000:
Kuraino, I said "a lot." I didn't say "most." Don't force Six Apart to define in writing exactly how they'll interpret the law, because if they do that, they'll be forced to choose a restrictive interpretation, which you will hate. As long as they're vague about it, they can pretend that anything illegal they happen to permit was a mistake instead of permitted on purpose. Their repeated failure to give specific definitions helps keep both Six Apart *and* fandom safe from the evil ones.

Objective, accurate and well-written, and a much needed wake up call to everyone who, as you said, wants to believe that what they want to do is legal simply because they want to do it.

soleta_nf from 142.166.71.123 at Wed, 08 Aug 2007 21:12:00 +0000:
Wow. You have quite an essay here. Others have made excellent points that I will not repeat. I just wanted to say that, from someone with a background in professional journalism, I don't think I've ever read a more inflammatory and sensationalistic blog post than this one. The mind boggles. I truly feel like I'm reading an incredibly self-satisfied journalist writing a news story that clarifies nothing and only illustrates how smart they seem to think they are. Thanks for trying to "clarify" things.

Yonmei from 80.195.247.96 at Wed, 08 Aug 2007 21:33:50 +0000:
You know, I think we've been reading different controversies.

Repetitively, I keep reading on both LJ Biz and LJ News, fans saying "If you've now got a policy that says "No sexually explicit material" or "No sexually explicit material in non-friends-locked posts", or "No sexually explicit material involving people or fictional characters who are or appear to be under 18", SAY SO". I'm summarising. But that's what I keep reading.

Kuraino from 140.233.205.52 at Wed, 08 Aug 2007 22:09:05 +0000:
Thanks for the reply. I can't think of a solution to this problem as it is right now. If 6A "can't" define what they don't want, and fandom want them to define what they don't want so fandom doesn't get banned, then...what do can be done? I guess the issue just kind of dies down on its own?

Although the "fandom-obsessed" individuals will probably not stop [spamming]. I wish it would stop right about now, this is all a very big headache.

reg from 71.168.88.44 at Wed, 08 Aug 2007 22:48:06 +0000:
all valid points,.. good level headed thinking,.. while i write erotica,it's my own characters and adult themes, i post open and uncut, both my art and my words,..and granted in some fringe areas i could be breaking the law somewhere,
my problem with 6A/LJ has always been the pretensions of "we're all one big happy clan" i never saw that and i saw the coming drama when the site was sold i was having problems before that,..crappy customer service and outright lies were the thing that turned me off from LJ (and there are other sites i have the issue with as well) so i use what i get and for what i pay for it i just expect it to have problems i'm going to have to deal with on my own,... such is life really,..;)

thesaurus from 84.66.30.160 at Wed, 08 Aug 2007 22:51:45 +0000:
Thank you for being the most sensible person on the internet right now.

Matt from 67.158.78.159 at Wed, 08 Aug 2007 22:56:33 +0000:
For what it's worth, crappy customer service both before and after the 6A sale was a big part of the reason I left LJ myself.

sgatlantislight from 206.169.252.129 at Wed, 08 Aug 2007 23:32:27 +0000:
The link you provided above doesn't mention Beattie as far as I could determine by running a search. It does mention Whorley. He was convicted of OBSCENITY, not child pornography in the case of him receiving anime/manga materials involving the sexual abuse of minors. Note that obscenity, while not requiring that the persons depicted be real nor the artwork photo-real in nature does require that the material in question contains no artistic value. LJ/6A acknowledged in both cases that the artwork in question was NOT child porn, but was being deleted due to obscenity-- i.e. they set themselves up as equal to a court of law and determined that the materials contained no artistic value. If the materials in question had no artistic value and were, therefore, obscene, they are, in fact, against LJ's TOS as it has stood for a long time. However, both artists were given to understand from previous statements issued by the company that 1) fanart and fanfiction, *even if it did involve minors*, was not against the TOS and 2) they would be given warning so that they could come into compliance rather than simply being deleted.

By deleting any and all journals created by those users and permanently banning them from ever creating new accounts, LJ/SixApart was non-compliant with their own business practices as laid out by them in statements to their users-- statements they posted in order to encourage good faith and trust in their company so that users would (continue to) purchase paid and permanent accounts or acquire ad-supported ones through which revenue could be gained via advertisers. It's a classic bait and switch, which is fraudulent and illegal.

*THIS* is what is of concern to LJ users.

Stella from 69.230.189.3 at Wed, 08 Aug 2007 23:42:25 +0000:
You are quite right in your comments and opinions.

What fandom keeps getting sidetracked on-- given the youth of so much of the community it's not surprising-- is that this issue has NOTHING to do with subtleties of legality. 6A has the right to ban any content they wish. I post at an erotica site as well as my blog, and there are some hard-and-fast rules there as well, relating to age and beastiality. It's simply a given.
And 6A has the right to ban.. butterflies, if they want. Hey, it's their site!

What 6A does NOT have the right to do, and you pointed this out, is to delete an entire oeuvre in one go, no warning, no second chance. This is unfair to the userbase. and unnecessarily draconian.

turtlesoup from 71.52.112.24 at Wed, 08 Aug 2007 23:44:26 +0000:
Thank you for shining light on the position in which 6A/LJ finds itself. I've had many of these same thoughts over the past few days, but this is a particularly clear view.

cynatnite from 66.168.86.17 at Thu, 09 Aug 2007 00:01:06 +0000:
Interesting perspective and good injection of reality, IMO. Pretty much agree with you about everything. I always chuckle at those who contest this is about their freedom of speech and/or freedom of expression. First of all, most of the content we use in fandom is illegal. Likenesses, video, music, the characters and so on do not belong to us. No matter our passion for our particular fandom, we in fact don't own them and never did. All the love in the world for our particular fandom ain't gonna change that.

The fact of the matter is that a lot of LJ folks have to recognize and accept the fact that LJ can ban whoever they want whenever they want and for whatever reason they want. LJ isn't a free speech zone and if LJ chooses to take a stand on a certain issue whether it's legal or not, that's their right. A person can take them to court if they wish, but I seriously can't see an HP fan suing LJ because their Harry/Snape erotic artwork was removed.

Really, fandom has little recourse in the courts and with lawmakers because of the nature of our passion. We do have to suck up a lot of decisions that get made by TPTB and sites like LJ. We're a blip on the radar of society as a whole and personally I like fandom as being on the outside of mainstream. Please, no attention on us.

kyokomurasaki from 74.244.22.61 at Thu, 09 Aug 2007 00:15:10 +0000:
Whether or not Livejournal was able to legally justify the deletion of a certain account based on the oh-so-controversial picture (which, if what you say is true, they were,) the thing that is pissing off a great deal of people the most is that the account was deleted not for CYA legal reasons, but on the basis of "artistic merit" as outlined in the Miller Test.

http://community.livejournal.com/lj_biz/241884.html?thread=12535260#t12535260 Elfgirl's reply to this thread highlights LJ contradicting themselves on whether or not the picture was indeed child pornography, but if they consider it not to be, they basically deleted an entire account for posting porn. There's nothing about pornography in the terms of service but it is against the TOS to "Upload, post or otherwise transmit any Content that is[...]obscene," and we all know how clear-cut the legal definition of obscenity is. 9_9

kyokomurasaki from 74.244.22.61 at Thu, 09 Aug 2007 00:24:35 +0000:
Sorry about the double-post, I thought of another question.

If fanworks are illegal because of unauthorized use of copyrighted characters, how do authors basically write published fanfiction using other authors' characters? Some that spring to mind are Susan Kay and Gregory Maguire. Is it because the characters and books they drew their works from are part of public domain? By extension, if fanworks about Harry Potter are illegal, would fanworks about Alice in Wonderland be legal because the book (and I suppose the characters also) are under public domain and thus not under copyright? If parody is protected, why not fanworks?

Lanerose from 24.185.211.224 at Thu, 09 Aug 2007 00:33:49 +0000:
Actually, I disagree with your assertion that fanfiction is necessarily an infringement of copyright. In the first place, fanfiction displays a transformative effect on the initial work. While it has never been tested in court, different rulings suggest that transformative work is inherently different from a copy of a work. The derivative works clause was initially put in place to keep people from changing one or two words of a work and calling it something new. As transformative work, fanfiction falls into a category similar to the infamous work The Wind Done Gone, which is nothing if not a fanfic of Gone With the Wind. In that sense, courts have already upheld the rights of fanfiction authors.

Moreover, even if one were to presume that fanfiction was a violation in the strictest sense of copyright law, the fair use defense would apply to many fanfic authors. Many fanfic authors would like to one day be professional writers, and use fanfiction for the educational purpose of training themselves to be better writers. They post their fics in the public forum in hopes of receiving criticism and advice on how they might improve their writing. Some fanfiction contains political or social commentary. Other fanfics are very clearly parodies.

While I see what you're getting at, I do not believe you are necessarily correct.

Matt from 67.158.78.159 at Thu, 09 Aug 2007 00:42:51 +0000:
I don't know the answer for sure, but I note that L. Frank Baum (author of The Wizard of Oz) died in 1919, 88 years ago, and Gaston Lerouax (author of The Phantom of the Opera) died in 1927, 80 years ago. Both are past the 70-year Berne Convention limit. However, Phantom was published in 1990, which was within the Berne Convention limit, so I would think the copyright on the original would still have been in effect. Wicked was after the 70-year limit expired. I think both were before the recent extension to 90 years in the USA, though I'm not sure of that.

One thing to consider is that both Wicked and Phantom involve major revision of the characters they borrow. They're deliberately not just using the characters from the original sources unchanged. If anything, copyright holders might object that the depictions are not *enough* like the original vision - which was more or less the objection raised against Alice Randall and The Wind Done Gone. She effectively won her case, but not without a lot of grief first, and she needed the deep pockets of her publisher (which fans don't have) to do it.

See also my comment above on the double standard between print and the Net.

Laura from 76.214.235.130 at Thu, 09 Aug 2007 01:04:46 +0000:
"As transformative work, fanfiction falls into a category similar to the infamous work The Wind Done Gone, which is nothing if not a fanfic of Gone With the Wind. In that sense, courts have already upheld the rights of fanfiction authors. "

Ummm. How about no? In that case, it was settled out of court and there is no precedent there.

ceresi from 216.68.46.28 at Thu, 09 Aug 2007 01:08:38 +0000:
Has anyone discussed the impact of using certain characters in explicit fan fic as opposed to others? I remember hearing somewhere -- in one of the previous flaps about fandom, I think -- that even a work with an adult Harry Potter can be subject to legal action because Harry Potter is a character popular with children, and by extension fics/art involving him are considered to be marketed towards children. Similar, I guess, to the tobacco companies that were penalized for using cartoon images in their advertising.

Iggy Lovechild from 207.62.247.40 at Thu, 09 Aug 2007 01:20:39 +0000:
One thing before I get down to my opinion: I'm getting really sick of folks thinking that every single person involved in fandom is a squeeing 16-year-old fangirl, especially if they're involved in the adult content portion.

I just thought I'd share my story as someone who is a fanfic writer/reader. I recently left lj because of this latest purge. This is not because I write for the Potter fandom (okay, one story, but it was decided chaste and unobjectionable) or because I frequently write about minors in adult situations. In case you care, I write slash (gay erotica) for the FF7 fandom and concerning characters well over the age of consent.

I left because I was starting to get very fucking nervous. Okay, so fanart depicting images of characters who appear/are minors might be an understandable offense (you know, if they were real people, but whatever), but I started thinking about what if they decided to take things a little further? Also, exactly what is objectionable content since the CPA is frequently misinterpreted? Teen sex-ed sites have been lost under this law, ditto with rape survivor blogs and sites, what have you. Really, the law isn't as clear as if seems and it borders absurdity at times. Child pornography is wrong, but what about the freedom of expression? When these fanartists are creating a picture, they're not thinking about character ages, just the characters. Fewer fanfic writers and artists are aware of these things than you might think. You might call this ignorance or oblivion, but it's true and admittedly sometimes disturbing. But the fact of the matter is these are fictional characters and quite frankly I wish more people would think about how it reflected on the viewer if the first thing they thought of is that they're seeing minors in "sexually explicit situations". Seriously, Snape is not really fucking Harry and Serious is not really fucking Hermoine in his dog form or whatever. They can't because they are fictional characters.

God, I'm completely rambling and probably not making much sense. I just don't understand how art can fall under the CPA because it turns on some of the wrong people. Nor for that matter do I understand how it's child pornaography if someone looks younger. That means lj is probably going to be going after yaoi/shounen-ai next because the art style typically portrays one of the men involved to look younger even if he's an age of consent.

Lanerose from 24.185.211.224 at Thu, 09 Aug 2007 02:03:43 +0000:
In response to Laura's comment about the case involving The Wind Done Gone being settled out of court, I invite anyone to look up Suntrust Bank vs. Houghton Mifflin, which clearly states the decision of the U.S. Court of Appeals against the owners of Gone With the Wind. The case law is there.

(And, as a note, you might want to have a long chat with a couple of *real* lawyers before you write another essay attempting legal theory. You should have had a nice chat with a couple - one specializing in obscenity law and one specializing in intellectual rights - before writing this one.)

Matt from 67.158.78.159 at Thu, 09 Aug 2007 02:34:46 +0000:
Read the other people's comments above. Isn't it interesting that so *many* people are asking why I singled them out personally?

garlicfiend from 67.185.106.155 at Thu, 09 Aug 2007 03:19:15 +0000:
I understand what you are trying to get at here -- the objective reality that fandom is facing and which lies behind 6A/LJ's actions.

If I have a bone to pick, it's the characterization of fandom products as "illegal." That's a term that lawyers are very careful with, because law is a process, something this post just doesn't express. An act or the product of an act is as exactly as illegal as the justice system declares it to be, and I mean a specific act on a case-by-case basis. The law itself is an abstraction, and the job of our justice system to decide what when and where the actions of an individual seem to violate that abstraction.

Let's say I take a "clear violation of copyright law" as an example. I download a song from a music CD, upload it to a webserver, and make it available for download at a fee. Now, it is common practice to say that I have broken the law. That is an assumption. In fact, it must be determined that I have broken the law by judicial branch of our government. They are the only ones who can say the act was illegal. Others can allege that the act was illegal. They can bring my case to a civil court and ask the judge to decide whether it was illegal or not. A prosecutor can bring allegations before a criminal court that I have acted illegally. But the act is not illegal until judged by the judicial branch.

In every single case in fandom, on a case by case basis, nothing is illegal until decided by an officer of the court. It's that simple, and it's the basis of our judicial system.

It's also why copyright violations mean absolutely nothing to 6A/LJ until they get a court order to remove something, because until that order exists, it's not actually a violation. It's just not a problem for them. Hell, they can say "We won't allow any illegal content on our servers." And they are golden. They can allow anything they want until an officer of the court comes and says, on a case-by-case basis "That's illegal, and it has to go."

You also, in my opinion, completely overestimate the threat of the religious right. You don't think Focus on the Family knows about fandom, especially HP fandom? Ha! FotF *hates* Harry Potter. Encouraging witchcraft and satanism and all that. Now go to Google and type Harry Potter. Bingo -- fandom. It's all right there.

The dirty secret of the religious right is that, when it comes to the internet, they're outnumbered and underpowered. The righties like their anonymous pr0n browsing as much as everyone else. Sure, they can't stand the HP fandom. But you can't target fandom because it's completely decentralized. They can't go after fandom legally because of the above comments about the justice system being case-by-case. That's worked *real* well for the RIAA, hasn't it? And FotF doesn't even have RIAA's resources.

The religious right is leaning on the social networking sites because it's all they have. And it works, because 6A then goes to it's legal department and says "Um, what's the risk here?" And a lawyer's job isn't to say "Here's what I think you can get away with." His or her job is to say "This is the worst case scenario." Because the lawyer understands that the law is a complex process, and on a really bad day, anyone can wind up a convicted criminal.

In the end, it *all* comes back to 6A/LJ. They could stick to a conservative interpretation of their ToS and comply with any court order handed to them and they would be fine. They are not liable for the content of the journals; that, at least, has real legal precedent. They are *not* officers of the court, and thus it does not fall to them to determine what acts by their clients are legal and illegal, just as the manufacturer of a handgun is not liable for the crimes that handgun may be involved in.

No, 6A/LJ doesn't have to stick for our free-speech rights. But by bowing to external moral pressure, they have failed to stand up for their own rights as an entity, the right dissociate themselves from the content. That was an enormous loss on their part. They have now invited special interest groups to treat their corporation like dirt. A precedent has been set, and now they screwed themselves, because they can't win this. If Conservative groups had come to them and they said "Hey, don't look at us, we only provide a hosting service. Talk to law enforcement." They would be fine. FINE. But they gave away their position of strength, and now they are screwed.

aizjanika from 12.210.64.122 at Thu, 09 Aug 2007 03:24:06 +0000:
This was fascinating to read. This is a completely different perspective from what I've seen elsewhere. Thanks. :-)

Especially since when I first read this essay, I was halfway though the last chapter of The Metamorphisis of Prime Intellect, which has a whole lot of what by these standards is child porn. I was wondering how you knew.

Matt from 67.158.78.159 at Thu, 09 Aug 2007 03:43:54 +0000:
Well, in *your* case that shouldn't be any great mystery. :-)

Liz from 68.45.202.245 at Thu, 09 Aug 2007 07:29:44 +0000:
Okay, so I've read this post and I acknowledge that you have made a point. Consider me reality-checked. I now have a question.

Why are you belittling the existence of grey areas in the law?

Fandom exists BECAUSE there ARE grey areas. The fact that there are lawyers in fandom willing to look into the existing laws and precedents and find "loopholes," as you call them, is something that could potentially save anyone in fandom (and by your account, it really COULD be anyone in fandom), forced to confront the court of law, from serving time in jail or paying crippling fines for what you and I both believe to be a 99% harmless hobby. You say that we should protest the laws and political climate that has associated fannish pursuits with the word illegal before we start arguing about such-and-such legality, but the way I see it, the minute we start any such uphill battle, we're going to be seeing some action on the legal front. I for one would rather be armed for such an eventuality, rather than not.

acelightning from 68.82.9.59 at Thu, 09 Aug 2007 08:31:21 +0000:
May I post a link to this in my LJ? (This is a formal request for your permission.)

arimareiji from 24.19.203.32 at Thu, 09 Aug 2007 10:44:07 +0000:
sgatlantislight: "LJ/6A acknowledged in both cases that the artwork in question was NOT child porn, but was being deleted due to obscenity-- i.e. they set themselves up as equal to a court of law and determined that the materials contained no artistic value."

If you say that LJ/6A has acted offensively and arrogantly, I'll agree with you. If you say that they've given thousands of paying customers the finger, I'll agree with you. All they bloody had to do was say "We can't discuss the legal issues at hand, now or in the future. If as a result you decide to leave us, we'll be sorry to see you go. But we can't." It would have come across much better than "F*ing whatever; you think we care what you think?"

But if you say that they're morally wrong for being frightened by the kind of risks you're discussing... go back and READ that link re: creative prosecution. For God's sake, man!

Are you asserting that you are so unafraid of spending decades in prison, of being tracked and publicly shamed as a child rapist for the rest of your life, that your primary concern... would be whether it had artistic merit? Or which statute you were convicted on? If that's true, you have immensely more courage than I possess. But I don't think you can fairly expect others to show that kind of courage.

These are Bush's prosecutors. Handpicked, if you remember that scandal. They're not discussing a hypothetical at the end of their article. It's the US Attorneys' Bulletin. ***They're laying out strategy.***

"Accordingly, not only should federal prosecutors use the statute to prosecute cartoons, as in Dwight Worley's case, but they should also consider using the statute to prosecute cases that may be difficult to prosecute under 18 U.S.C. 2252 and 2252A, for example, where it may be difficult to establish that the children depicted in the images are real."

You and I might debate over individual pieces, or styles... but do you honestly believe any mainstream American would hesitate to label any piece of erotic fanart as "without artistic merit"?

Nick T from 192.190.75.16 at Thu, 09 Aug 2007 13:10:36 +0000:
Great article Matt. I was surprised reading the article; I thought, "Wow, that scrollbar is pretty huge, must be a pretty exhaustive article," and it was reasonably long... but the COMMENTS... its astounding the amount of response this has received!

Doug from 70.231.97.194 at Thu, 09 Aug 2007 13:21:41 +0000:
Copyright / trademark infringement isn't AFAIK jailarity illegal, though it does allow the copyright / trademark holder to sue your ### if they wish. At least, that's what I learned from reading Slashdot. Its been a while since I last read about the DMCA, so I'm not sure what the courts left of it and what the current status of online publishing is.

As for the gray area, I do recall a quote from one judge as saying "I know obscenity when I see it!" If your fanfic/fanart makes Mr & Mrs Whitebread go "ick" or "eww" or "Whiskey Tango Foxtrot", they're really not likely to continue reading between the lines to see the gray area. All they see is Harry x Snape and that's pretty much it. Yeah, I know everyone's a critic. Go talk to the guys behind #### Christ and Chocolate Jesus about the joys of artistic merit.

Icarus from 140.142.181.5 at Thu, 09 Aug 2007 13:34:17 +0000:
The fans have been chattering away in their Livejournal accounts for the last five or six years. As you mention, these laws changed back in 2003 -- four years ago. Before Six Apart bought Livejournal.

Now they have a problem? Why? It's not the law or they would have raised it years ago.

sinboy (on LJ) from 64.59.36.122 at Thu, 09 Aug 2007 13:38:06 +0000:
Pro-anorexia is legal, even if it horrifies you. Child pornography and copyright infringement are illegal, even if you like them. Six Apart bans people for posting illegal things, when they're absolutely forced to, and attempts not to ban people for posting legal things.

Actually, the paid Sixapart rep on the fanfic vs. pro-ana thread specifically said that "remain because they are, in most cases, serving as support groups for the members." and also "We don't allow any hate-crime promoting communities to stay."

Supporting someone starving themselves to death in order to get some perverts thin fetish met is arguably something someone can be held liable for in court. That includes Sixapart if the staff ignores frequent warnings that this stuff is really dangerous.

It may or may not win in court, but it exposes them to liability in a wrongful death suit much in the same way that they argue that fanfic including potentially underage characters opens them to a lawsuit.

The only difference it, when someone is dead, suits are much much more likely.

nycene from 74.15.64.187 at Thu, 09 Aug 2007 13:43:47 +0000:
i fully understand that much of the online content i enjoy may be illegal (in some jurisdictions, even my own). i understand that my viewpoints are not mainstream.

what tends to get me angry is the general willingness to roll over and accept restrictions because "its illegal" or " a private corporation". the lack of willingness to fight to change the law, to challenge the mainstream. the willingness to accept corporate social control. the willingness to accept 'community standards' - community standards = mob rule. Nazi Germany was a commuity with standards.

i practice law. the law changes. the law is an ass. the law is used to crush dissent and maintain social control. rule of law can be one of the least violent means of crushing dissent and maintaining social control. like democracy, it isn't perfect - but there isn't anything better.

i am a freaky pervert and proud of it. i don't expect LJ to be brave - i expect them to do what is in the best interests of their shareholders. if i had a paid account i would cancel it (but i don't - the last strikethrough fiasco nipped that expenditure in the bud).

my legal advice to LJ would be to highlight this term of the TOS (deleting the portions in [ ]):

All Content posted to LiveJournal in any way, is the responsibility and property of the author. LiveJournal [is committed to maintaining the Service in a manner reasonably acceptable to all audiences but] is not responsible for the monitoring or filtering of any journal Content.

and then rely on it. when some "anti-freedom, think of the children, nipplegate" group sets their hands to wringing because of some content they deem inappropriate (adultery, anorexia, BDSM, britney's cooch) LJ should notify the owner of the content that there has been a complaint (provide them a copy) and advise that if legal proceedings are commenced LJ will cooperate with American authorities. they should copy that response to the person complaining and suggest that they contact their local authorities for further assistance.

it is much harder to squelch dissent without corporate (LJ) sponsorship. why should LJ waste its time and shareholder's money weeding out kinky freaks and copyright violators. that is why we have the police and courts (funded by the community, to uphold its standands).

Matt from 67.158.78.159 at Thu, 09 Aug 2007 13:50:35 +0000:
Icarus - see my comment above about dropping lit matches in a dry forest. The risk has existed for a long time. It shouldn't be a surprise that eventually the bad things happen even though for a long time they didn't.

Sinboy - as I said, what 6A *said* about the pro-anorexia thing was very stupid. The underlying issue doesn't change just because they said stupid things about it.

Paul Riddell from 12.18.111.2 at Thu, 09 Aug 2007 14:22:45 +0000:
I'm flattered and somewhat disturbed by the namedrop: all I can say otherwise is that you're absolutely on the money with your concerns. Me, I'll be sticking with LJ for a while, but that's mostly because by the time 6Apart falls apart, I'll have done all I can with my LJ in the first place. And so it goes.

Terrie from 66.41.51.151 at Thu, 09 Aug 2007 14:26:29 +0000:
You mention the PROTECT Act as proof that fan art can be considered child pornography. Sorry, but you're wrong. In fact, to quote that bill that was eventually agreed to or passed by both House and Senate includes the phrase "This definition does not apply to depictions that are drawings, cartoons, sculptures, or paintings depicting minors or adults." It then creates sentencing standards for obscene material (illegal anyway) that include children as subject matter, even if drawn/sculpted/etc. Of course, in today's day and age, you have actually have a pretty good chance of failing the "patently offensive" requirement for obscenity unless there's bodily waste, animals or children obviously under the age of 16.

Ms Katonic from 194.176.105.40 at Thu, 09 Aug 2007 15:14:18 +0000:
I think you're missing the point - we're fully aware that fanworks are skating the boundaries of copyright violation. That's not a new issue, it's been around for years. It's not however a criminal offence - it's a civil one. You don't get tried for copyright infringement by the state - the copyright holder sues you. In cases where copyright-holders have explicitly stated they don't want fanfic based on the work, fans have co-operated and taken the work done, archives have co-operated and stopped hosting the work. The Vampire Chronicles are the best known example. But regardless, the police are not going to be knocking on 6A's door for copyright violation offences. 6A might hear from the copyright holder's lawyers, but if that did happen, I think you'll find most of the fen would be a bit more accepting. There'd be some complaint, but not many would really argue that if the copyright holder wanted the stuff down, the fans had many other options than to remove it.

As for the child porn bit - the legality bit has been debated enough already, and whether it is legal or not, most fans do accept that LJ/6A have a right to host or not host whatever they want on their servers. Most fen also have a reasonable idea of what it's reasonable to expect. If 6A changed the ToS properly to say unequivocally that they were no longer willing to host work involving explicit sexual activity involving anyone under 18 or who appeared to be, yes, there'd be bitching, but fen'd go along with it. They'd move things offsite, they'd take things down, but probably most would just resign themselves to it. I don't think we'd have the same shock and anger we have now.

Maybe most fen would secretly like 6A to turn around and say "we love having this stuff here! Post away!" but there is a difference between wanting something and expecting it. We're not expecting them to side with us - we are expecting they'll treat their users, many of whom have given considerable time and money to LJ over the years, with a basic level of respect and actually post some clear guidelines and rules for us to abide by. At the moment, we are having people's entire LJ presence eradicated for good, with no warning, based solely on subjective decisions made by individual LJ staffers. Is it any wonder the fans are irate?

I will also echo other commenters' responses to fandom being considered a perversion by right-wing America: I'm bisexual, polyamorous, neo-pagan and into BDSM. Right-wing America approves of none of that; does that mean I should stop all that too?

Matt from 129.97.79.144 at Thu, 09 Aug 2007 15:15:46 +0000:
Terrie - See the Whorley case. But also understand that the law doesn't work like the card game "War." What is or isn't illegal is not determined by a contest of who can find the highest-valued card to play. It's not like in the movies. It's also not like mathematics, where a conjecture can be invalidated completely by a single barely-plausible counterexample. If you ever find yourself in the position of trying to explain to a jury of mundanes who've never heard of fandom that it's perfectly okay and acceptable for you to look at explicit drawings of a teenage boy being forced to perform oral sex on a much older man just because it's not a photograph of real people, then you are already in very deep shit no matter what "proof" you think you can find in the PROTECT Act.

Paul Riddell - you know the joke about the man jumping on the manhole cover and yelling "53... 53... 53..."?

Valancy from 204.187.140.18 at Thu, 09 Aug 2007 15:56:19 +0000:
I've maintained for a long time that fanfiction is illegal.

I know it is. I won't deny it.

I got into HP fandom when I was 14, and a lot of what I have read and experienced has shaped who I am today. I have seen the darkest, dirtiest parts of HP fandom. Read some of the craziest (and best) porn you'll find on the internet. Harry Potter fans are fucked up, pure and simple. Sure, maybe fandom made me a twisted freak, but highly I suspect that I would have been a twisted freak no matter what.

I've tried to leave fandom. Seriously I have. But I can't unlearn all the things I have learned. The terminology, the community; I understand more about how fandom works that I will ever need to know. I can't really leave it behind because it is apart of me. I wouldn't want to get rid of that part of my personality. Yes I am a 'freaky pervert' by the mainstream views, no I do not support child pornography in any way.

I'm not really apart of the sensationalistic aspect of this whole issue. I don't care if LJ took down the child porn at all, that's their right. Anyone who denies Child Porn isn't apart of HP fandom is seriously deluded. It's wrong, illegal and deserves to be taken down at the very least.

I do think LJ/6A handled it badly. Very badly, and that their actions regarding their policies have been questionable at best.

When the revolution comes Fandom will be first against the wall.

It'll be sad. All that lovely porn will be gone D:

Terrie from 66.41.51.151 at Thu, 09 Aug 2007 16:49:38 +0000:
I'm a law librarian. I know how the law works. Personally, I'd avoid the jury all together -- you can waive your right to a jury trial and have a judge as your finder of fact. And that's if I couldn't get it thrown out under a Rule 12 motion, on failure to state an offense. And Whorley, again, is about obscene material, not only "minors". Not to mention that, since it's a district court case, it has very little value as precedent. I'm not in that circuit, nor is SA/JL, so that makes it even less relevant.

culturedgoat from 61.112.87.52 at Thu, 09 Aug 2007 17:21:00 +0000:
Thank you for an excellent and very interesting essay.

From what I've seen in the LJ community discussions, "Fandom" (if we can blanket it into one entity for a moment) seems to be demanding a special set of rules for them, based on their own already-established protocols and understandings. But at the end of the day, if you're going to depict a character - who is universally reknown for being a young boy - in a sexual situation, you're already treading dangerous ground, no matter which way you try to read or mis-read the law. Protesting after the fact that "but he's supposed to be of-age in the picture" is about as effective as your classic "but officer, she said she was 18!".

There's also the rather disturbing double-standard, in fandom demanding that LJ be direct with them and play it straight, while at the same time derailing a lot of the real discussion into a smoke-screen of tangents - trying to pretend that the problem with the image is not one of child-porn, but rather arbritrary concepts like "artistic merit", "real vs. fictional" depictions, and, in some cases (thankfully among the rarer), depressingly absurd claims of "homophobia".

Of course, it's none of these, and if fandom are demanding that SA/LJ must face the situation head-on, without skirting any of the issues, then fandom must be prepared to do the same. Let's stop trying to pretend black is white and trying to bend legal-speak to fit our personal point-of-view. I'd say you've brought up some very interesting insights to that end.

Chrissy from 69.159.194.38 at Thu, 09 Aug 2007 17:34:33 +0000:
I agree with most of what you said, except in the section about what Six Apart did wrong, the point starting with "Banning, and restoration of accounts, in secret" and the suggestion that public acknowledgement of who was banished and why would have been better.

It seems to me that there has already been a lot of accusation that the deletions were "traumatizing," "slander" and basically amounted to public accusations of paedophilia. Which I think is ridiculous, but might have actually been arguable, had LJ made any sort of public declaration as to why certain journals were banned.

I also think it would also be tantamount to Six Apart stating an explicit policy about what is allowed on LJ and what isn't, which you suggested earlier in your piece is something they really can't or shouldn't do for both legal purposes and to maintain the tenuous "don't ask/don't tell" state of content of dubious legality hosted on LJ servers.

Otherwise, I think this is really bang-on and I think you for composing and sharing it.

Whitaker from 204.9.178.253 at Thu, 09 Aug 2007 18:20:15 +0000:
This is the best commentary I've read about any of the situations discussed. Thank you for taking such a methodical and well-balanced approach while investigating these issues.

One issue I would like to address is the recent data center outage. Having personally been on the front lines of LJ's recovery in this situation, I was disappointed that we were unable to get the site up before some other 6a services, but also happy with the end result: LJ recovered from this outage much faster than we ever have from any power loss in the past.

We had people crammed in tiny rows in the data center working for many hours with no breaks, fighting the dehydrating effects of climate control and the maddeningly loud whir of thousands of fans. I was personally working in the lobby of an airport throughout the entire ordeal because it wasn't a good use of 30 minutes to go to a hotel. Our LJ Operations team had all of the technical capability and personnel they needed to restore the site and their response was not hindered by recovery efforts taking place on other 6a sites.

Once again, thank you for this well-researched and thoughtful inspection.

Matt from 129.97.79.144 at Thu, 09 Aug 2007 18:27:40 +0000:
Chrissy - yes, there's a trade-off between doing things in public, so everyone can see that the process is being done fairly, and doing things in private, so as to protect everybody's privacy. There's no absolutely good answer to that. Either way you go will be a problem on one side or the other. I think 6A is making a mistake by going too far in the direction of keeping everything private. Bear in mind that what people are being banned for is usually *publishing* (even if behind a friends-lock) material they weren't supposed to publish... so the fact that they did that isn't a big secret that needs to be kept. The secrecy surrounding bans seems to be a much bigger problem at the moment.

Real courts face the same issue - protecting the privacy of victims and accused versus letting everyone see that the process is being carried out fairly - and the compromise they use in practice is overwhelmingly on the side of "let everyone see that the process is being carried out fairly." Courtrooms are open to the public, records are available for inspection, and so on.

Also note how upset people were when 6A *stopped* striking out banned usernames. That could have been claimed to be a pro-privacy effort, but it sure didn't go over well. Even the banned accountholders often seem to want it known that they were banned.

aristaea from 129.174.65.218 at Thu, 09 Aug 2007 18:29:34 +0000:
This was an interesting article, although I kind of lost focus halfway through because I don't really care about the legal issues behind whatever fandom does. I do appreciate your addressing the issue of legality in fandom, but I do not believe it is very helpful.

Yes, I am a fan. Yes, I participate in fandom. Yes, I realise that mainstream people think we're perverts and wrong in the head. Yes, I realise that there are legal issues involved in what we do. Yes, LJ has the right to ban any content they want to, for any reason they want to.

But since I pay for my LJ, and have been doing so for several years, I'd like to know what the policies are in terms of what content is banned, what their abuse procedures are, what kind of content will merit deletion (of content) versus permanent suspension of the user, and why they keep talking about "child pornography" when they have already said that it was not the problem in at least one of the recent suspensions.

I would also like a little more transparency from them about their policies and business practices in general, and disclosure of any affiliation or cooperation with groups such as Warriors for Innocence and Perverted Justice. As a survivor of childhood sexual abuse, I think that banning child pornography is an excellent thing for LiveJournal to do, but I think they are having some issues with understanding what constitutes child pornography.

I would like them to enforce their TOS in a consistent manner -- that is the issue behind the pro-ana debate. Their TOS prohibit content encouraging self-harm; it isn't a legal issue, it's a TOS issue. People have reported pro-ana and pro-racist and pro-self-harm communities in the past, and have received responses from Abuse that amount to, "it's legal, we can't do anything". That's not what the terms of service say, and banning some users for violation of the TOS when they refuse to do anything about the others is stupid and offensive.

These are some of the things I want, as one of the people who supports LiveJournal by paying for their service. This is a business issue. I and several others have been trying to point out to the less reasonable fen that this is not a fandom issue. I do not want to be lumped in with the crazy people ranting about persecution and comparing LJ to Nazis, or crying about violations of civil liberties; that is INSANE. It isn't a fandom issue. It is an issue that may affect fans disproportionately, and that's it. Fans and non-fans alike are hindering our attempts to communicate with LiveJournal and Six Apart by conflating fandom with fen. Just because some fen are angry does not mean fandom is angry. Some fen don't care at all. Some people who are not in fandom care a great deal. Categorising it as a fandom issue is making serious questions look foolish. There are many users who are going on and on about fandom in their comments. They are louder than the rest of us, because the rest of us are trying to remain calm, look at the issue rationally, and not spam LJ. If LiveJournal wants to ban certain activities that fandom engages in (such as visual erotica), that's cool, they have that right. Most of us are okay with that, and willing to cooperate. What we have a problem with is their refusal to tell us so. It is not difficult to say, "we do not want any sexually graphic images on our servers". It is also not difficult for them to say, "we are sorry but we cannot be more specific, and we will try to work with users individually in the case of any reported violations."

Some basic customer service would have saved them a lot of grief.

alan from 67.109.235.226 at Thu, 09 Aug 2007 18:56:05 +0000:
Everytime I read about some fan-ficer upset because their kiddie porn hiding as characters from books they read got them banned, I add a dollar to the amount that I'm going to donate to http://protect.org/ next paycheck.

Rachet from 128.146.118.132 at Thu, 09 Aug 2007 20:09:22 +0000:
This was an interesting read. Thanks for posting it.

As a Potter fan I've been finding this whole fiasco fascinating.

I'm not leaving LJ because of the mess, though. I've seen the other journal sites and, personally, I find LJ much more superior.

That and I'm too lazy.

aplacetoread from 209.89.170.210 at Thu, 09 Aug 2007 20:50:14 +0000:
I'm a little confused about what you are saying about the illegality of erotic fiction. You addressed the book Lolita above in comments but did not address The Flowers in the Attic series of books by V.C. Andrews. These books are best sellers and widely available 'mainstream' books. Capital 'L' literature they aren't. The books involve graphic sex, incest and adult/minor sexual encounters. These books are clearly not illegal in the United States, at least not yet. They quite frankly tend to read quite a bit like your average fanfiction story and appeal to the same demographic. Now if you strip aside the copywrite issues fanfiction faces how can one be illegal and the other widely distributed?

sovayfox from 72.70.238.120 at Thu, 09 Aug 2007 21:05:19 +0000:
I think the slashdot article has a more accurate less biased view of the situation http://slashdot.org/~herejackback/journal/178719

thecaelum from 206.213.40.100 at Thu, 09 Aug 2007 21:12:27 +0000:
You make a number of interesting points with this article, but your methods actively harm the attempt to 'educate' fandom.

First, there are no citations in that article. You stated that this was to prevent arguments on the nuances of the law, but I find that idea difficult to believe. The entire article is written in a very antagonistic manner. Because of this, the claim that you want to avoid arguments doesn't hold much water. You began this discussion by mentioning the law. Cite your sources, even if you are concerned that the readers' interpretations of these laws can and will differ from your own.

You applied several laws and/or interpretations of laws to this situation in support of your opinions. According to the text of your article, and absent any citations to specific sources, you appear to be interpreting the laws in question to support your argument. Speaking as someone who has a few friends involved in various aspects of the judicial system (an attorney specializing in finance and estate planning, an officer of law enforcement, and a general paralegal), interpretation of the law is a very difficult thing to do with the proper education and/or background. I question your knowledge of and ability to accurately interpret and apply the (often vague) laws that you have mentioned.

Yes, fandom needed to be told that flinging laws around without understanding the proper context or application of them is a bad plan. This article tried to do that, but antagonized the reader with sarcasm and attacking language, did not cite applicable laws and/or interpretations of those laws if not made by you, and did not mention your knowledge and/or background that would qualify you to interpret these laws.

In short? You'll have to do better if you want me to take you seriously.

Writing/drawing about fictional characters in sexual situations = NOT ilegal

Use another example for whatever point you are trying to make, thank you.

Matt from 67.158.78.159 at Thu, 09 Aug 2007 21:23:45 +0000:
aplacetoread: Since I haven't read the Flowers in the Attic books, it would be irresponsible for me to try to classify them.

thecaelum: I think you've missed the point that these matters are not settled by citations; courts don't work like Wikipedia, and the methods it takes to convince you are not the methods it takes to keep someone safe from prosecution.

Monica: See the PROTECT Act, which criminalizes depictions of fictional characters, and the Whorley case, in which someone was convicted under that act. Both are more recent than and supercede Ashcroft v. Free Speech Coalition, which is the case most people have in mind when they attempt the "fictional characters = not illegal" argument. Links above.

sgatlantislight from 206.169.252.129 at Thu, 09 Aug 2007 21:46:36 +0000:
arimareiji-- I was making the legal distinction that the OP failed to make, and an important legal distinction it is and one that's been tramped into the ground in this discussion. There's a difference between child pornography and obscenity. I felt it was important that the readers understood that in the Whorley case which the OP is joyfully waving around, he was *NOT* convicted of child pornography for being in possession of manga with underaged characters in sexual situations. I keep hearing people going, "Even a drawing or cartoon can get you charged with child porn!" It *CAN'T*. It can get you charged with obscenity, which is a whole different animal, legally speaking, though probably not so much to Joe Fan under the bright lights. I felt it was important to point out that the OP was conflating two separate issues into one.

Second, you seem to think I'm an artist-- I'm not-- and one who draws underaged characters in sexual situations-- I'm not. In fact, I've only seen one of the two pieces in question, after the fact, and it's not to my taste, but it's not child porn.

You also seem to have missed the major point of my post, which was that regardless of whether the pieces are child porn (they aren't) or obscenity (they might be), fanartists, fanwriters, and fanreaders/viewers were tricked into purchasing or continuing paid, permanent, and ad-sponsored accounts by reassurances from LJ/6A that fanart and fanfiction didn't violate their TOS and if there were ever cases where it was felt the *did* the poster would be warned rather than simply deleted and *BANNED* with no recourse. (Keep in mind, LJ has said, "Well, they can attempt to reverse the ruling by filing an appeal through an LJ support request," but to do this *you have to be logged in* and to do that, *you have to have an LJ account* which these people have been banned from having. Ever. That's some catch, that catch-22.)

What LJ did wasn't just bad business. It's *FRAUD*. Every single one of their little reassurances to the customers that tricked *anyone* into giving them money in the form of paying for an account or ad revenues could be reported to their own abuse team as an illegal post. How 'bout them apples?

Firebird from 80.189.17.95 at Thu, 09 Aug 2007 21:59:18 +0000:
Yeah fanfic is definately dubious even if it's G rated Gen but I'm watching this as much from the perspective as an original fic writer as an occassional fan author. I would assume original art/fic is going to be held to the same standards and I'd kind of like to know the standard - even though the chance of me writing or drawing anything nc-17 (even between consenting adults) is somewhat less than me winning the national lottery.

Personally I think LJ might be best instituting a total NC-17 ban regardless of whether the work is fan or original. It wouldn't be popular. I think it would be accepted - albeit with some bitching and people would find other places to put their NC-17 works. However I suspect LJ is fearful of being accused of stifling free expression. They really need to get over that it's their sandpit they can ban any content they want.

thecaelum from 206.213.40.100 at Thu, 09 Aug 2007 22:01:55 +0000:
Matt: You are framing your opinions with references to and interpretations of law, so cite your sources. It shouldn’t be that difficult a thing to do, and your reluctance to do so is, again, questionable. You have strongly implied that fandom wouldn’t do well in a court of law, and I tend to agree. However, that in itself does not exempt you from presenting a responsible and well-researched article, including citing your sources.

The methods it takes to convince me would be to 1) cite your sources and 2) tone down the aggression in your article and responses to the people who disagree with your approach and question you, including me. It really is that simple.

Matt from 67.158.78.159 at Thu, 09 Aug 2007 22:20:57 +0000:
Why would I want to convince you when you haven't even read the references I already gave?

And as JK has said she enjoys fanfic and encourages her readers to write it... it's not illegal to write HP fanfic.

There are plenty of fanfic published in book form, such as prequals and sequals of books already published. Such as the prequal for Peter-Pan.

It's out there, people need to deal with it. LJ needs to pick sides. Be clear about it. Not lie. And stick to what it believes and preaches rather than picking and choosing.

thecaelum from 206.213.40.100 at Thu, 09 Aug 2007 23:16:32 +0000:
Matt: That's an assumptive statement, and seems rather defensive as well. I read your article, most of the comments, and several of the external links that you mentioned within those comments. I am asking for the ability to read the source documentation for the laws and/or interpretations of the laws that you used when writing and/or researching your article. I'd like to verify what you are saying here by reading your sources, and comparable documents. I'd also appreciate knowing more about your qualifications related to interpreting the law.

I don't understand why these are such difficult things for you to provide. As a part of the conclusion of your article, you mention accepting the risks of taking a certain stand. One of the risks of taking an unpopular stand (like challenging existing laws) would be backing up an opinion piece with relevant facts and research. It's amusing to consider the irony that you are unwilling to do so, isn't it?

fibrowitch - DumasJ from 65.96.16.78 at Fri, 10 Aug 2007 00:16:28 +0000:
Great post, I have added you to my feed. I am amazed by the rumors and odd things people have said and done during this go round.

The paranoia and lack of basic knowledge has surprised me. People beleived for a while that LJ was reading every journal looking for posts by some of the deleted people.

You are right in the asumption many posters have that if they say something is not illegal, or a drawing or story is not illegal, since it is not a scene directly from the source.

I have been posting on and off about this myself as fibro_witch on live journal.

pir from 207.81.84.246 at Fri, 10 Aug 2007 01:01:32 +0000:
interesting article, and i agree with a lot of it, and don't feel like nitpicking that with which i don't. i agree that LJ is considerably better for fandom than many realize -- so far. but i'm still about to leave LJ, because i have serious misgivings about what going corporate has done to it and is going to do; i think i'd rather invest my canadian pennies elsewhere.

some notes, including on your replies to comments, and a question:

'I bet they're quietly complying with any DMCA notices they get.'

you're correct. contrary to what a commenter claimed, they're not waiting for any court orders, but just like any other provider these days offer a DMCA form, and act on it immediately if it is correctly filled in.

'They said "We will ban anyone we know is doing illegal things through Livejournal." They also have to say that.'

do they? which law requires that? i am not asking facetiously, i'd like to know. they do in fact not ban for many things that might be illegal -- for example, offenses such as posting nudie images of minors to communities such as "show_your_boobs" used to not result in a ban, but in a temporary suspension until the material was removed. the "permanent suspension and full-out ban" hammer was used only for actual child pornography. the HP fan pictures in question were not deemed so, however; they were merely deemed obscene (at least as far as i can follow the twisting and turning logic). i don't understand why, and i think it's a mistake -- unless they really are now aiming to get rid of the darker underbelly of fandom by causing the chan-lovers to leave on their own in the wake of this. i am leaning slightly towards that interpretation.

It's perfectly reasonable that they would get far more complaints about alleged child porn than about alleged copyright infringement, because there are more people who care: only the copyright holder for a given property cares about copyright infringement, but ANY conservative nutbar cares about child porn.

interestingly enough, not so. or at least it wasn't so when i was on the abuse team a couple of years ago. there are oodles of people who don't actually hold a valid copyright who care. many alleged copyright infringement complaints come from the sort of people who amused you in the OP: icon makers who rip images off the net or the tv to slap some text on it, and then become possessive about it. many also come from valid copyright holders; most of them are small-time. used to be all together they were rather more numerous than child porn accusations. LJ isn't a particular haven for actual child porn peddlers from what i've seen, which might account for that.

that is really what bothers me most here: i can understand 6A running scared, but suddenly pulling the rug out from people you have previously reassured that they're safe, and taking all that they have invested in LJ away in one fell swoop is not the best way to change a policy.

Laura from 76.214.235.130 at Fri, 10 Aug 2007 01:14:17 +0000:
Jabbernaught, while JKR might like fan fiction, it doesn't mean that she and other intellectual property holders related to Harry Potter do. See http://www.chillingeffects.org/fanfic/notice.cgi?NoticeID=522 and http://www.chillingeffects.org/fanfic/notice.cgi?NoticeID=534 which both include JKR as the person sending the letter. They indicate that JKR does not like adult material based on her work.

At the same time, you have Warner Brothers. San Fransisco Chronicle dated November 18, 2001, Harry Potter WB related executives released a statement regarding Harry Potter fan fiction:

"It is not only our legal obligation, but also our moral obligation to protect the integrity of our intellectual properties," the statement says. "This is especially true in the case of indecent infringement of any icon whose target audience is children."

Although Warner Bros. goes on to declare its commitment to "protecting First Amendment rights," it appears that billable hours are about to start piling up.

Now, JKR might encourage people to write fan fiction but writing and publishing are NOT the same thing.

Auror_Lib from 211.31.22.109 at Fri, 10 Aug 2007 02:34:40 +0000:
Hi Matt, I think you make some interesting points. I'm currently writing my thesis on fanfic - may I quote from this article please?

sheramil from 203.87.64.97 at Fri, 10 Aug 2007 02:36:44 +0000:
Matthew, i'd be grateful if you could specify which of my LJ posts could be considered illegal. or could be considered "fan fiction", for that matter. sheesh, i haven't even read any of Rowling's work, much less fanficted it.

sheramil from 203.87.64.97 at Fri, 10 Aug 2007 02:46:43 +0000:
.. okay. it seems in the few minutes between reading this and posting my first response, my name has been removed from the article. thank you. i expect you were thinking of something i posted in talk.bizarre, although if you were, i'd like to know specifically which post you were thinking of. i go to ridiculous extremes to avoid that sort of thing.

Matt from 67.158.78.159 at Fri, 10 Aug 2007 02:57:41 +0000:
sheramil, I'd have expected you of all people to know that things are not always as they appear on the Net, especially not after I've touched them.

Auror_Lib: go ahead. My full name is "Matthew Skala".

bookcat from 75.25.140.225 at Fri, 10 Aug 2007 03:58:29 +0000:
Thank you for posting this, it was very helpful as to understanding the full story vs. people on my friends list saying "LJ IS OPPRESSIVE WE'RE MOVING TO IJ/GJ/WHATEVER". That's over simplifying things of course, but thank you anyway. ^_^

bookcat from 75.25.140.225 at Fri, 10 Aug 2007 04:01:53 +0000:
PS: Yes, I consider myself a member of fandom, but disregarding that (yes, it is possible!), the mainstream POV is pretty fucked up anyway.

bookcat from 75.25.140.225 at Fri, 10 Aug 2007 04:09:28 +0000:
(last one, I swear)PPSS: I was previously warned about the "inserts your name into the essay!" trick, but it was still a bit of a shock. :D

(and congrats for confusing so many people. nice job.) XD

Omnipresent Doormat from 75.204.184.191 at Fri, 10 Aug 2007 04:14:22 +0000:
Thank you for clarifying several points which I was having trouble with.

I will admit, first of all, that I have been in fandom since I was twelve years old(I'm now in college), and I have written fic since I was nine, and that I don't care whether or not it's legal. My main thought when worrying about fanfic being banned was actually how I could still get it covertly. I don't think I'm the only one, either. I know that you're right, and that it's the law, but I'm a fairly amoral person, and I don't consider all of the law correct, the fact that I have to abide by it aside. I will say, first of all, that I do not support child pornography. But when I say child pornography, I think of it as depictions of a person who has not hit puberty, or who is not yet old enough to make an informed decision in regard to their sexuality. I also don't mind that I'm a 'deviant'. I don't have any strange fetishes, I'm practically afraid of drugs and alcohol, and I won't have sex for fear of pregnancy, but I know that even those of us (like me) who seem normal in real life and have a lot of normal friends and normal hobbies (for instance, besides fandom, I love basketball, blues music, and politics). I DO THINK your reasoning is correct, and that your sources are probably correct (although I think that the part about animated/drawn child porn is a bit shady, so I'm going to reserve judgment and research it before I say anything. I've seen shotakon available at mainstream places like Borders). I thank you again for stating why lj is doing what it is doing. I, personally, have stayed out of the whole debacle, and I will continue to for as long as possible.

But I maintain my belief that while it is the law, and I can't change that (conceivably), it is wrong. I know, however, that this is a belief and I cannot impose it upon others, as I would not appreciate them doing the same to me. I think that there is a lot of fic with artistic merit. My favorite HP fanfic is seven books long with a very involved plot, and the characters don't really 'get together' until the fifth part. I hate that I have to comply with laws that seem arbitrary to me, and that seem tailored to cater to those who nothing about the subject at all. I know, also, that a large part of me would die with fandom. I have made so many friends, opinions, and decisions based on it that it would utterly devastate me.

But this has nothing to do with me, personally. It is a matter of the general populace, and I can't really do much about it, no matter how much I would like to. I know this, and that is why I've chosen to stay out of this entire situation until someone sent me the link to this article.

Thank you for your time, and I hope that you won't get too many more stupid comments about usernames and 'fanfic is gay' that demean the time and effort you put into this. We do appreciate it, even if many of us don't properly show it.

Omnipresent Doormat from 75.204.184.191 at Fri, 10 Aug 2007 04:16:44 +0000:
Whoops, I have an incomplete thought in the big paragraph. Sorry for being rambly.

Bree from 24.158.228.61 at Fri, 10 Aug 2007 04:32:09 +0000:
I think I rather might be a bit in love with you.

An LJer from 70.76.164.211 at Fri, 10 Aug 2007 05:43:47 +0000:
I'm an LJer who reads fanfiction, but only on FanFiction.net.

I am an artist who thinks there's pretty much no merit to any kind of fanart.

I am also wondering why anyone would need any kind of support from LJ for anything? It's the unaffected people who leave that make me wonder at the whole thing. LJ is handling this like a corporation, and the problem with the internet is that people get this silly idea that individuals are important. You're not important to any company unless you're part of a huge group, and even then you might be dispensable. Deal.

For goodness sake, you signed on for this. You told LJ that they could delete your account at any time WITHOUT notice. Just because it's their stated policy means nothing.

Take your fanfiction and fanart to FanFiction.net and DeviantArt. That's where it belongs, and where you won't get sued by the mainstream.

As far as legal issues, both Matt and many other posters here have good points. Irrelevant all, though, because if you have an LJ account, you signed the LJ TOS. You signed up for this. So deal.

shaynie_renoylds@yahoo.com from 70.77.38.160 at Fri, 10 Aug 2007 07:07:55 +0000:
First off I'd like to start by mentioning one major flaw in your argument.

Fan fiction, and fan creations, are not illegal. Fan works exist in that wonderful area under American law under fair use provisions; and in specific under concepts related to "transformative" texts.

It exists, as much art does, in reference to critical discussion and analysis of art. It has an important function; most of all it isn't actually illegal even if c&ds spring up like wildfire. You want to know why people listen to them? Because it's EASIER to give in and, as in many past passive aggressive movements by small groups, safer to simply move somewhere else.

Which is often what happens.

Not because it's illegal, but because the cost effective shares end up on the other side of the 'fence'.

Kate from 72.87.188.40 at Fri, 10 Aug 2007 07:29:15 +0000:
thecaelum: Since Matt seems to be ignoring you, I'll link to the PROTECT Act. The relevant portion is Title V (Pg 676), specifically Sections 503 and 504. Admittedly my qualifications to interpret the law are about equal to Matt's (read: none), but child pornography (which involves real minors) is dealt with as a seperate entity from visual depictions of minors in engaged in sexual conduct, which is dealt with under obscenity laws.

Here's a link to a news release on the Whorley case from the Department of Justice, which states that he was convicted of a) recieving cartoons, under the obscenity law, and b) recieving child pornography. Two. Seperate. Charges.

Seriously, Matt. Cite your sources if you want to be taken seriously, and also, when accusing others of not understanding the law, do not misunderstand the law. In your essay you repeatedly refer to Harry Potter fanart as "child pornography" when in fact, legally, it is not. It may or may not be illegal under obscenity laws, which even LJ itself said in their clarification post. The law also explicitly refers only to visual depictions, so your discussion of Harry Potter fanfiction as "child pornography" is even more inaccurate.

When we're talking about "child pornography," which harms real children, it's false to characterize the fictional creations of fanartists as child pornography. Is it obscene? Maybe yes, maybe no. Is it child pornography? Emphatically no, and your use of loaded (and inaccurate) language is incredibly irresponsible.

Not to mention the irony of you misinterpreting the law in a post about how people shouldn't misinterpret the law. Nice.

monkeyfun1 from 70.190.96.161 at Fri, 10 Aug 2007 08:10:40 +0000:
Matt, is there a particular reason you singled me out for this article? I've never said I was "above" anyone else at LJ. You make it sound as if I do. And you're pointing a finger at my reading preferences that I'd like to know how you come into having the statistics for. It's basically an accusation. There are hundreds, if not thousands of people on Live Journal who you could have named, why me? Please explain and Please, remove my name from your article.

erin from 24.8.10.213 at Fri, 10 Aug 2007 09:03:13 +0000:
do you like being a silly person? bravo, very entertaining

Has LJ/6A acted atrociously? I've already agreed that they have, but to be absolutely clear: In a just world, they should be forced to refund the standing balance of ANYONE who wants to leave in light of recent events. Not just the bannees. They have insulted and grossly lied to their customers, although they might argue they meant well. But in the US, it's not only legal to trick people out of their money... it's praiseworthy in business circles. X-|

I'm a suspicious bastard. I've walked on signing some contracts despite reassurances that the language of the contract wasn't "really" there to be enforced, or doesn't "really" mean what it literally says. I've probably missed some good deals as a result. But when you trust someone on that basis, you give them the legal (not ethical) right to completely screw you if they so choose.

And regretfully, that's what I believe happened here. :-(

~~~~~~~~~~~~

I already understood that there is a clear legal distinction. I didn't argue that there isn't; in fact I tried to draw attention to the fact that federal prosecutors under the current administration have declared that their strategy will be to conflate the two charges.

But I stand by what I said: If you literally faced being prosecuted by the extremely-powerful legal fist of the Bush administration (the US Attorneys), I would be stunned if it mattered more than a whit to you which exact statute they use.

Seriously, stop and try to imagine that it's you under that gun. Do you own, or have you ever seen on the Internet, -ANY- image that could be interpreted by a hostile federal prosecutor (not by a person of reason) as a lewd depiction of a child? Then their goal will not be to enforce any specific statute against you - their goal will be to take away everything you hold dear, for every day and month and year that they possibly can. By any means necessary. These people are NOT f*ing kidding. :-(

Whorley's no hero. But as far as I know, they never convicted him on anything more than possession and receipt of "pornography" and "obscenity"... and he's spent five years in prison, with twenty more to go.

That's the inherent problem with trusting people to write legal definitions that "don't really mean what they say." In the hands of a ruthless person, they can lead to travesties that are TRUE obscenity.

(If the name Javert rings a bell to you, I doubt I need to explain the purpose of such a reference. If not, don't worry about it.)

~~~~~~~~~~~~~~~~~~~~~

I loved your reference to Catch-22. ^_^ You're right; the "requirements" are perfect absurdity. But please remember the definition of Catch-22 that Yossarian heard near the end, from the old woman who ran the brothel:

"Catch-22 says they have a right to do anything we can't stop them from doing."

It applies in both the above situations.

Monkeyfun1 from 70.190.96.161 at Fri, 10 Aug 2007 11:24:31 +0000:
I will admit to being suckered.

Matt from 67.158.78.159 at Fri, 10 Aug 2007 12:46:29 +0000:
There is no contradiction between writing about the spirit of the law, which is clear, and refusing to argue the letter of the law, which can never really be finally resolved. I'm sorry that after the many thousands of words I and others have written on this point, we're still getting a lot of "but I think I can find loopholes in the letter of the law to avoid the real point, so why are you afraid to debate on *my* terms?" comments.

The distinction between "obscenity" and "child pornography" is a good example of a distinction in the letter of the law that isn't going to make a difference to real people. If you're into either one, you're an OMG EVIL CHILD MOLESTER as far as the mundanes are concerned, and you've already lost. Don't think that if someone fingers you for "child pornography" you'll be able to say to the judge, "Actually, it was obscenity," and have them say "Oh, that's perfectly okay, then, sorry to trouble you."

Not that anyone will read this who didn't read it the several other times I said it, but: I didn't say that *all* fandom material is illegal. I said that a *lot* of it is illegal. That means not all, not almost all, not necessarily even a majority, but enough that we can't pretend the illegal stuff is all off in a corner and can be ignored. What fans think of as mainstream and perfectly safe *includes* (does not consist exclusively of) illegal material. I also said that it is all close enough to illegal that a corporate legal department won't endorse any of it as "perfectly safe, no problem, nothing to worry about" and the copyright grey areas alone are enough to make that true.

1. It's all at least grey.
2. Some of it is black.
3. It's not all black.
4. Some of the stuff that fan consensus holds to be white, is black.

thecaelum from 24.56.40.127 at Fri, 10 Aug 2007 13:06:34 +0000:
Kate: Thank you very much for the links. I find that the writer of this article probably did not cite his sources because they were damaging to his points. It's a shame, because there were some beneficial opinions in the article, namely the call for fandom to calm down and start thinking about what we (as a collective group) really want to accomplish in this conflict with 6A.

Overall in the comments, I'm seeing quite a few people reacting to the inflammatory nature of the article, the code inserting a username into the text, and to being fearful of the law because they don't understand how it applies to them. I suspect that the fear tactics in this article are intentional on the writer's part, as reactive people tend to have a more difficult time questioning the substance and legitimacy of what they are reacting to.

There are plenty of links, and plenty of arguments on how various laws apply to fannish activities. The bottom line to any argument advocating that fandom 'cinch its belt' is simple. Fandom is and will always be an underground type of community. Fandom is very difficult to explain to someone outside of it, and tends to make these same people uneasy. If you want to be perfectly safe in any walk of life, you can't take a risk above and beyond waking up in the morning. If you want to be reasonably safe in fandom, you will have to exercise good judgment and caution, and keep as informed as you can of applicable laws.

To that end, there are several resources that I recommend.

fandomlawyers - a community on LJ of lawyers and non-lawyers who are interested in the broad spectrum of legal issues of concern to the fan community.

http://www.chillingeffects.org/fanfic/ - This excellent website tracks current and past DMCA notices against fanwork, and provides a good breakdown of what a fan can face from the legal system. This is good general information, and does not replace a reasonable understanding of how the law works.

http://www.eff.org/bloggers/lg/ - EFF provides an excellent legal guide to bloggers, including those who post adult material.

Matt from 67.158.78.159 at Fri, 10 Aug 2007 13:25:13 +0000:
thecaelum: I agree with much of what you say in your last comment. I'm sorry you mixed it with insults, because I think we're really on the same side here.

suchan from 213.96.24.175 at Fri, 10 Aug 2007 13:50:42 +0000:
forget previous one, I saw how it works, good trick!

Dave from 216.27.178.244 at Fri, 10 Aug 2007 14:30:33 +0000:
I think this is a great writeup of the current situation, but you probably could have stopped once you realized that the vast majority of people who do illegal things just don't accept the idea that whatever they do is actually against any kind of law, or that by defending themselves they'll lose anyway even if they actually win their case. Millions of people have illegal mp3's. There's plenty of debate on whether or not it SHOULD be illegal, but as the law stands it's illegal and the only reason some people get away with spreading the illegal mp3's here and there, is that nobody cares about certain ones that do it and the lawyers only have so many bullets they can fire at once. (there's not an infinite amount of lawyers and time for those lawyers to find someone to sue).

I have no affiliation with anything fanfic, child porn, anorexia or anything described here, but I run a website that's mostly filled with what US Copyright deems illegal. Yeah, there's a quasi-defined gray area that'll be my half-assed defense if someone ever gets around to suing me for it, but I acknowledge that what I'm doing definitely has the ability to be successfully challenged in the courts, and that there's a very small chance that I'll win. Even if I "win" there's an even bigger chance that I'll still be ruined financially and out of work after having been tossed in the pokey. It's a fairly stupid thing to do I guess, but I do it because I assume that I'm a low priority compared to people who do REALLY illegal stuff.

But I'm not foolish enough to think that my "kinda sorta illegal" is any less illegal than someone actually doing the things I don't think i really do.

And judging by the comments here, a lot of the people LJ/6A targets just aren't willing to accept the idea that what they're doing may even be "kinda sorta illegal" in any way and come up with all sorts of crazy rules to justify it.

Plenty of people legally do what my website does on a daily basis, with the exact same type of content, but that doesn't mean my site is going to survive any legal challenges. Same goes for this stuff. The copyright is challenge #1, and you're going to lose without a doubt. Copyright's unfortunately real clear. The child porn, porn in general (or worse, obscenity), porn available to minors (and no, just asking minors to go fuck off doesn't really hold up) etc etc may all get to have happy little gray areas where you don't think anyone can touch you like it's the Neutral Zone or something, but it's just because nobody's turned the gun on you yet that anyone doing it gets away with it.

Challenging it in court will absolutely devastate anyone who tries it, even if they're right. You have to pay the lawyers up front, remember? Even if you're right, even if you win back costs in a judgement (which you likely won't unless it's some sort of malicious prosecution rather than a valid suspicion) you're still going to eat a lot of money defending yourself. There may be 10,000 or 100,000 fanfic people on LJ, but how many of those are gonna pony up for your legal defense, and the next one after that?

Just look at what you do with an objective eye (probably impossible at this point since most fanfic people think it's some holy crusade they're on now, ugh) and realize that what you do may be something that's not in the best interest of someone who doesn't want to end up in court. If you feel your rights have been violated, feel free to sue them in a court.

or just start using another site. better yet, take the fight to your own doorstep and start a website if you feel the demand is there and that it can survive the legal challenges of the court. Don't use LJ/6A as your personal bodyguard, because when it comes down to it, they'd rather delete you than defend you in court. That's just not what a smart company with a good lawyer does.

thecaelum from 206.213.40.100 at Fri, 10 Aug 2007 14:44:07 +0000:
Matt: I appreciate your effort to reach toward common ground. My issue isn't with you as a person, and I feel that I need to make that abundantly clear.

My issue is with your article. You have misinterpreted the law, and that combined with the sensationalist tone of your article detracts from its potential value. When you present legal interpretation/advice, it is reasonable to be prepared to cite both your sources and qualifications to interpret the law. Here's why.

I have no idea who you are. In your article, you essentially ask your readers to accept what you are saying here as fact and use this information as a basis for decision-making. To ask this of your readers without verifying your information or your credentials is unreasonable. I found it very questionable that you refused to cite your sources when asked, repeatedly, to do so. In doing so, you were expecting me to take legal advice from a stranger who may or may not be qualified to give it. I'm sure you can understand why I consider that to be unwise.

Syndra from 213.118.146.71 at Fri, 10 Aug 2007 15:25:59 +0000:
According to your text, people who consider themselves members of fandom are not normal? You say:

"In fandom we have our own standards of what's normal. Those standards are different from the standards of the general population. What we consider normal isn't normal by, well, normal people's standards."

Why is that? Everyone differs from each other and some people like this and others that. Reading and writing fanfiction and creating fanart is just another way how people like to pass their time. If you are a member of a tennis club, that doesn't make you less normal to the outside world, now does it? So members of fandom are like all people, just normal. I don't have to take this accusation of you. Everyone is the general population and no one can be excluded from it. To go even further, there is no such thing as a general population as we're all unique.

Secondly, I am absolutely aware that fanfiction is illegal. But then again, what are you going to do with the authors of the 'official' stories who don't mind people using their characters? Some authors even encourage their readers to use them for their own stories. So if they're used with permission, can it still be called illegal?

If JK Rowling really was against all those fanfics, don't you think we would've heard of it by now?

Thirdly: who is this 'we' you're talking about and how dare you talking to people of fandom like they're a mass and nothing more?

If you have the feeling that I accuse you, then I'm sorry, but I merely treat people how I'm treated by them.

Matt from 129.97.79.144 at Fri, 10 Aug 2007 15:52:53 +0000:
I don't think that people who consider themselves members of fandom are necessarily abnormal. I think that people who consider themselves members of fandom are, necessarily, considered abnormal by people who don't consider themselves members of fandom. There's a "Them" and an "Us" from the point of view of someone outside of fandom.

Even if some members of fandom see fandom as diverse, people who are not members of fandom see all of fandom as one unit, and tend to judge all of fandom by its freakiest members. Also, there are a lot of people even within fandom who see all of fandom as one unit - they are the people, for instance, who promote the "fandom_counts" community. I'm not saying they're right. I'm saying we must recognize and deal with the fact that people who believe that do exist. Such people are the main audience for this article and so it's written in their language. Argue against the Them/Us construction is also a worthwhile activity, but it's not my goal here. Would you like to take up that torch?

The points you raise are quite right about why fandom, and all of humanity, really are diverse. I agree with that. It's not really about a Them and an Us. Liking to draw pictures of Severus and Harry getting it on should be no stranger than playing tennis. But a lot of humanity doesn't see it that way, and telling it to me won't convince those people.

Steve from 165.154.153.29 at Fri, 10 Aug 2007 15:58:21 +0000:
thecaelum: If you don't know who Matt is, or his background and find that important/relevant, then read the rest of Matt's website. Matthew Skala has lots of info about himself and you will know him better by reading his website than meeting him in person.

To save time for the lazy, Matt doesn't just "talk the talk" he really is one of the few who "walks the walk." Matt is one of those people who argues what the law SHOULD be in person to law makers in the official appropriate venues. Matt has also been sued in the past by a large right wing company that objected under copyright law when he aired their dirty little secrets. He didn't roll over and at significant personal financial risk defended himself legally against an unjust prosecution.

As far as I am concerned he has earned the right to discuss this topic as someone "who's been in the line of fire."

Syndra from 213.118.146.71 at Fri, 10 Aug 2007 16:21:04 +0000:
I agree with you when you say that people outside of fandom tend to raise an eyebrow when they're confronted with the phenomena of it. That's where explaining comes in. People are scared of what they don't know. That doesn't mean that fandom causes a threat and that they should be scared of it. Isn't it the same when it comes to homosexuality? People don't understand it, so it must be wrong and should be damned.

I also don't agree with the people who tend to think for me. I am a human being and am perfectly fine to think for myself. That's why I don't like people using the 'us' (just like you using the 'we'). On the other hand, I do think it is a good thing that there are people out there who take matters in their own hands when it comes to something they cherish and of which a lot of people are not aware, even though in a way they should be.

I've got a few more things to say.

1) Can you answer my question please when it comes to the fact that original authors do agree with fanfics?

2) I also don't agree with your opinion of thinking that the authors of fanfics are seemingly unaware of it being illegal. I think that putting a disclaimer above one's story should give you the idea that they know what they're doing. I do believe that the disclaimer is necessary and shouldn't be dismissed. After all, it clearly states that he characters aren't theirs and they make no money out of it.

What I also think, and that's why I asked you the first question, is that authors, and not the law, should have the final word when it comes to their characters. I also believe that a lot of authors who don't react to fanfiction, aren't ignorant to it and think of fanfiction as a matter of not being spoken of. 'Don't speak of it and all is fine,' so to say. If they'd have objections, then we'd know about them. Authors though can use the law to get their way, see the case of Anne Rice.

I'm glad you took the time to respond to my previous comment. I appreciate that.

kangeiko from 86.151.104.250 at Fri, 10 Aug 2007 16:32:35 +0000:
That was an interesting read. I didn't agree with much of it, I confess, because it seemed to be conflating two offences of hugely differing magnitudes.

Suppose you have an apple tree in your garden. Walking past, I stop by this apple tree and help myself to an apple. This is theft.

The next day, you accost me in the street and accuse me of stealing your dog, buggering him in a monastery and then throwing him from the high tower. This, too, would be a crime. Unfortunately, it's not the one I committed.

Being accused of child pornography is not the same thing as being accused of copyright violation. Ignoring the differences in the actual crime, for one thing, they are crimes of *vastly differing magnitudes*. An individual *will* be prosecuted to the full extent of the law if they have child pornography. It is highly unlikely that they will be prosecuted for producing a piece of fan fiction or fan art that is not for profit. It's not worth the company's time to start suing individual producers of such fiction, just as it wouldn't be worth your time taking me to court over that apple. Sure, it's theft. But you look the other way, and when you set up your apple juice stand later on in the summer, I'll be the first one there, dropping lots of money into the pot.

For a company, the gap between these two crimes - being held accountable for hosting child pornography v. being held accountable for hosting copyrighted material - would be a lot smaller. However, you're not going to sue the person who gives me a lift on their bike to help steal that apple. Chance are, they could be prosecuted...

... but what would that gain the copyright holders? A big legal bill. And the producers of the fan work would move to another site. And we've already established that you don't want to piss *them* off, as you don't want your latest movie to open in a haze of bad publicity. Just remember what happened when you denied a group of ten year old schoolchildren the right to dress up as witches and witches a few years ago... "Harry Potter ruins school fair!" across all the british papers.

Because here's the thing: in prosecuting fan fiction writers and fan artists, the companies will not be distinguishing between the quality of work produced, and the 'rating' of it. I wrote NC-17 fic when I was 14. Luckily, I didn't have access to the internet back them - but today's teens don't have that problem. So in prosecuting all those NC-17 Snape/harry fics, they'd also go after the Harry/Mary sue fics, written by school children convinced that what harry really needs to do is marry Voldemort's half-Veela, half-unicorn daughter, Princess Perfect.

And if they did prosecute? "Harry Potter sues schoolchildren!!" across *all* the papers.

Yes, fanfiction is in the grey area of legality. Yes, the copyright and trademark holders have the right to take us to court if they so choose. No, I don't believe that they will do so, not unless someone gets really stupid and tries actually *selling* fanworks for a profit (such as the unauthorised Chinese version of the HP novels).

***

On a completely different note, I wanted to bring up the subject of Star Trek fanfiction (because every good discussion of fanfiction legality should include it!). In the seventies, when Star Trek was cancelled, a bunch of people missed it and started writing fanfic. Some of them, for instance A.C. Crispin, wrote fanfics that were quite sizeable. Novel-length, really. They had those fanfics put in fanzines, and distributed them amongst friends. Then AC Crispin sent off said fanfic - called "Yesterday's Son" - to the Star Trek publishers. They liked it. They liked it so much that they decided to publish it as an original novel. The result? AC Crispin has spent some time on the New York bestseller list as a result of those books.

Nowadays, publishing houses will not accept the exciting new adventures of Kirk & co unless you already have a couple of books to your name and a pushy agent. However, they still receive manuscripts on a daily basis. If/when they are rejected, those manuscripts end up online.

THERE IS NOTHING THAT SAYS THEY NEED TO BE BURNED, IF NOT PUBLISHED. Admittedly, in the realm of Harry Potter, given that we're working the same medium as the original work, this is more difficult. If, however, I was to produce a story where Remus and Tonks had many adventures before the seventh book - or where we find out about the other wizarding books - and sent those off to a publisher, I WOULD GET NOTHING OTHER THAN A 'NO, THANK YOU'.

Producing fan work is not a crime. It's the way that the tie-in novels used to get written. It's still a way that comics artists can get picked up (put together a portfolio of work demonstrating that you can draw Spike & co fairly well, for instance, and try to get hired on the comics staff). The issue is whether putting the work on the internet is tantamount to publishing the work, unauthorised. Thus far, copyright holders have decided that it isn't - and even if it is, it's not worth pursuing.

I'm saying this because your comments imply that the consequences of being accused of copyright infringement and child pornography are comparable, for individuals or for Six Apart. They are not.

Matt from 129.97.79.144 at Fri, 10 Aug 2007 16:47:21 +0000:
"So if they're used with permission, can it still be called illegal?"

If copyrighted work *really is* used with permission from the copyright holder, there should be no problem. But that means specific, written permission for the individual use, and that's seldom what fanfic authors have.

If we're talking about a more general situation - like the comment J.K. Rowling apparently made in an interview about not minding fan fiction but wanting the sex-related stuff to be kept away from minors - then that's into the grey area. I very much doubt that what she said in the interview was a legally binding license for ALL fan fiction, and it would be dangerous for anyone to rely on it. On the other hand, if someone did get in trouble they'd certainly be foolish not to mention that as one of their reasons for thinking what they were doing was okay.

Chilling Effects reproduces C&Ds from Rowling's lawyers here:
http://www.chillingeffects.org/fanfic/notice.cgi?NoticeID=534
http://www.chillingeffects.org/fanfic/notice.cgi?NoticeID=522
Those are for sexually explicit material. The copyright issues don't depend on sexual explicitness, though; at most, you could say that sexually explicit material is more likely to offend copyright holders and more likely to get them to bother you. (Bother, bother, bother...) If she can legitimately demand the takedown of sexually explicit material on copyright grounds, then she can make the same demand for non-explicit material. The authors of non-explicit material just have to trust that she won't. "Illegal, but tolerated" is very different from "perfectly legal."

There are also fandoms other than HP in which the copyright holders have been more aggressive about restricting fanfic.
Here's a C&D from "CrossGen," which is apparently a comic book publisher:
http://www.chillingeffects.org/fanfic/notice.cgi?NoticeID=669

One other thing to think about is that what fans may see as one property isn't necessarily held by just one person or legal entity. J.K. Rowling holds the copyrights on her books, but Warner Brothers holds the trademarks on a lot of things related to the movies. Even if you think you have J.K. Rowling's permission, that doesn't mean you're safe from Warner Brothers if they think they have a claim too.

That same kind of situation shows up a lot with music swapping, where a band will say they're cool with having "their" music copied on the Net, but their label, which actually holds the copyrights to the music, has a different idea. It makes sense economically because bands generally lose money (or at best, make only a tiny profit) from sale of recorded music anyway; file sharing doesn't hurt them and acts as good advertising, and taking a "we allow file sharing" stand is good PR too. But labels think that file sharing hurts labels, and labels are paying for the file-sharing prosecutions.

Anna from 24.168.231.70 at Fri, 10 Aug 2007 16:51:30 +0000:
I'll be upfront and state my biases at the beginning: I'm a fan. Not a Harry Potter fan, and my fandom deals with twenty and thirty year olds, but nonetheless.

That said, I think you do some odd things here. The whole article is in a rather patronizing tone, I thought, but that I can ignore if the content's good. You seem confused about the law and don't cite sources, though, which is less forgivable in a post that's specifically about legal issues. You say you don't want to discuss the law, but then your whole essay is about a topic that can't be discussed in the *absence* of legal specifics. It's fine to claim that John Doe isn't fandom friendly, but that doesn't matter one whit in a courtroom before a judge who knows the nuances of the law and is deciding based on that, not on John Doe's uneducated opinions. So I think that the claim that legal specifics don't matter is deceptive at best, and disingenuous at worst.

You seem to think that fandom doesn't stand much of a chance in the courtroom, which to a degree I agree with (actually, I think it depends on exactly which case got tested; some questions of fandom legality stand a pretty good chance, I think, but others are non-starters), but you don't really cite the cases here that back the opinion up. Most of fandom accepts (and has for years) that fandom is illegal under copyright law, but copyrights aren't what's relevant to the present debate. The Whorley case you seem fond of citing is an obscenity case (child porn was a charge, but it was separate from the manga charges, which are the ones fandom should be interested in), so it's applicability to the 'fanfic as child porn' issue is difficult to see (I'm still not sure where you're getting what you say about textual fan-output and the law from). The PROTECT act specifically includes a section under 'child pornography' exempting depictions of fictional characters. Those depictions still may be obscene, sure, but there's a difference between child porn and obscenity, a big one.

I find myself agreeing with Terrie, thecaelum, and Kate on your legal interpretations here. Shaky at best, especially in the absence of citations.

Matt from 129.97.79.144 at Fri, 10 Aug 2007 17:10:36 +0000:
The Whorley case involved a conviction for text-only fictional descriptions of sex fantasies about children. Text-only fictional descriptions of sex fantasies about children are something that you can be prosecuted, convicted, and have your life ruined for. The usual name for such material is "child pornography."

The Beattie case, which I'm actually fonder of (but it's less relevant to most people here, because it's Canadian) is even more cut-and-dried, because it involved ONLY text-only fiction. The fiction there couldn't be argued to be just an aggravating factor for other charges for visual "real" child pornography. Even in Whorley, the text-only convictions were separate charges.

The difference between the legal definitions of "child pornography" and "obscenity" is not relevant to the fact that someone accused of either one for material involving even imaginary children, has their life ruined. Bear in mind, too, that I'm primarily interested in Canadian law here and "child pornography" here (as defined in section 163.1 of the Criminal Code) is defined as a type of "obscenity," not as a completely separate category, and it is the relevant type of "obscenity" for this material.

As far as a member of mainstream society, outside of fandom or the legal system, is concerned, that distinction is meaningless. It's all child pornography and guilt is automatic upon accusation. Imagine someone telling the Spanish Inquisition, "I'm not a heretic, I'm just a witch, that's totally different!" - or telling the Un-American Activities Committee "I'm not a Communist, I'm just a Marxist, that's totally different!"

sharky from 75.24.1.95 at Fri, 10 Aug 2007 18:58:34 +0000:
Uh, great, but the larger problem is that 6A does not respect its customers and does not intend to. Witness its casual deletion of survivor journals and prompt downplaying of how much damage it had actually done; witness its careless disregard for the harm pro-anorexia were doing to anorexic members, while at the same time seeming to believe that just because it wasn't illegal to be diagnosed with anorexia, it was totally okay to let pro-anorexia communities remain. (No, it isn't illegal to have anorexia; it is illegal to kill yourself; anorexia *is* the steady process of killing oneself.)

And no, I'm less "whining about the terrible secret" and more watching the bulk of the mess, where 6A's business practices are, when not disrespectful--witness saying they would respond, then being silent, then allowing its representatives to frolic about offending the customers--frequently downright harmful to its members and 6A never seems to take responsibility.

thecaelum from 206.213.40.100 at Fri, 10 Aug 2007 20:17:46 +0000:
Steve: First, being the subject of prosecution for an alleged violation of copyright law does not qualify Matt to interpret these or other laws. You also mention that he advocates for changing laws that he considers unjust. I commend him for doing so, but I do not see how either of these things qualifies him to interpret the law. I refer you to this article (http://ansuz.sooke.bc.ca/lawpoli/privacy/c-416.php), where he write about Bill C-416 and was advised that he had interpreted that bill incorrectly. I feel he is doing the same here. You consider him experienced to write an article on the law without having to cite his sources, and I respectfully disagree.

Secondly, I spent quite a bit of time browsing Matt's website prior to engaging in debate on this topic. I wanted to get a better feel for where he was coming from. I saw a bit on his advocacy work, but I did not and still do not find the information you are referring to here regarding the lawsuit against him. Would it be possible for you to include links to this in your next comment?

paronymous from 71.119.250.140 at Fri, 10 Aug 2007 22:11:16 +0000:
No one cares about copyright until significant amounts of money (or corporate image, which amounts to the same thing) come into play. It's foolish to think that every copyright infringement will potentially attract the attention of the authorities when the copyright owners have never had any interest in complaining about 99.9% of them. Matt comes off as someone hoping we'll be intimidated by his use of legalese and emphatic tone, while ignoring the way the law is implemented in the real world.

Now, what you can say about copyright holders is that they have a vested interest in encouraging "technically illegal", but financially harmless, violations. Fandom, at its most benign, is free advertisement, and viral marketing wouldn't spread so fast if everyone stopped to ask a company's permission before making a Livejournal userpic.

Steve from 165.154.153.6 at Fri, 10 Aug 2007 22:13:43 +0000:
Firstly, any literate and rational human being is qualified to interpret these and any other law. The law is not a arcane ritual that only the initiated may participate in.

Secondly, Matt's essay wasn't a legal argument about his interpretation of the law. You seem determined to try and turn it into that, and I commend Matt for defending his premise, not what others believe his premise is. Matt said it better than I could (and since you like citations): "I think you've missed the point that these matters are not settled by citations; courts don't work like Wikipedia, and the methods it takes to convince you are not the methods it takes to keep someone safe from prosecution."

Dumbing down Matt's essay to his primary thesis it's not a legal position, it's a real life one:
"Don't get too angry at others for refusing to risk their future for your moral beliefs of what is 'right'. Risking your future on a theoretical belief while ignoring real world forces with an opposing agenda is DANGEROUS. You do it risking serious negative real world consequences to yourself and those who agree with you. Being on the short end of the stick *power wise* while prosecuted SUCKS HARDCORE, doubly so if in a grey area."

Matt has experienced being on the moral side of what is right, but the wrong side of the power balance in a legal proceeding. That eminently allows him to say "Don't expect others to fight these fights while you cheerlead. Fighting this stuff SUCKS!"

Fourth keep in mind that there are at least **TWO** countries Matt is referring to. Just because what is specifically said does not -exactly- apply to you in your current jurisdiction does not mean that it does not apply to someone else. Jurisdiction is immaterial to Matt's thesis, if someone *thinks* bad stuff *might* apply to you, it sucks for you.

And finally, you keep demanding citations for anything that is said... even with me! Give it a rest and instead look for your own sources since I also believe you haven't read the citations that Matt did provide. Here is a hint: google "matthew skala lawsuit" This website contains a search engine, use that too. But for the truly lazy go here for answers: http://xkcd.com/285/ (click my name above for that page)

thecaelum from 206.213.40.100 at Fri, 10 Aug 2007 22:39:03 +0000:
Steve: I appreciate the link that you provided. As for Matt's qualifications to interpret law, neither of seem willing to compromise on that point. I think it would be best at this juncture to simply disagree and leave it at that.

I can appreciate that you feel strongly in your defense of Matt's stance and his credentials, but it is not necessary to be rude or insulting. I explained upthreads my reasons for requesting specific references in Matt's case, and I asked for links from you because I was unfamiliar with the lawsuit and wanted to change that. You have referred to me twice now as lazy, and I'm curious as to why you feel this way.

Kate from 72.87.188.40 at Sat, 11 Aug 2007 03:45:50 +0000:
Matt: This is not about trying to find a "loophole" in the law; it's about the fact that you are conflating *two different laws*. If I was in posession of Harry Potter fanart, and someone tried to finger me for child pornography, the case would be thrown out of court, if it ever went to trial in the first place--no real kids, not child pornography, no matter what the "mundanes" think of me. Were they to charge me with possession of obscene drawings, they MIGHT or MIGHT NOT win, depending on whether or not the drawings were found to be obscene.

Seriously, *language matters.* Talking about LJ cracking down on "child pornography" is likely to be met with, "Good, those kiddie-fuckers deserve it". Since the legal definition of child pornography involves the molestation of actual children, "child pornography" links the two in people's heads, even if we're just talking about text or pictures. Talking about LJ enforcing obscenity laws is likely to be met with, "Wait, so what do they consider 'obscene'?" because most people recognize that it's a subjective judgement.

In fact, here: have a link on how rarely obscenity is even prosecuted. http://www.nytimes.com/2007/08/10/us/10obscene.html

Seriously, there are three different issues here:

1. What the law actually is regarding explicit fanart (and this can actually be seperated into a. Canadian law and b. US law, since you keep bringing up Canadian law despite the fact that LJ/6A is centered in the US, and thus only US law directly affects their policies)
2. What the "mundanes" think or would think about it (although the pressure on LJ seems to be coming less from "the average dude on the street" and more from "crazies on the internet"--WFI, Perverted Justice, etc.)
3. What LJ's policies are (I'm not saying their TOS, because these recent changes are not reflected in their TOS

If you had said, "the 'mundanes' and LJ/6A both seem to consider any depiction of a minor (or at least, someone not explicitly of age) engaged in sexually explicit conduct to be child pornography," you would be correct. HOWEVER, you are incorrect in saying that the law itself states this. This is where my problem lies. By inaccurately representing the law, and by using loading language, you are siding yourself with the "mundanes" who care less about the reality of the situation than they do about assuaging their own hysterical 'protect the children' impulses--or at least, you are aiding their cause. Remember--two people *were* accused of creating obscene material depicting minors, and let me assure you, they *do* care about the difference, as does fandom. If the two deleted artists had actually been creating child pornography, they would not have the support of fandom.

Also, if you are going to say that something is *illegal*, you may want to accurately state how and why it is illegal, under which conditions it is illegal, and under which law it is illegal, and you should do so *correctly*. Particularly in a post where you complain about people willfully misinterpreting the law! Seriously, you are no more qualified to interpret the law than most of fandom (and less qualified than a small segment of fandom), and yet you act as though everyone else's reading is flawed, and yours is correct, and how dare we debate your reading of the law, when even people trained in the law frequently debate these things. I understand that you are trying to warn fandom to err on the side of caution, which is a noble concern, but you in doing so you are a) implicating much of fandom in crimes that they are not committing, b) using loaded language that plays on the fears of people on both sides--fandom and the "mundanes" both, and c) misrepresenting the law, which I will again remind you, is exactly what you tell people *not* to do in this essay.

A seperate issue is how LJ/6A is treating its users, including how well they adhere to their own TOS, which is what the pro-anorexia controversy is about. Pro-anorexia journals may not be illegal, but they do violate LJ's TOS.

It doesn't matter if your fanart/fanfiction is "only a fan drawing", it's still smut, and kiddie smut at that.

Matt from 67.158.78.159 at Sat, 11 Aug 2007 10:47:11 +0000:
The current statutes, case law, and public perception all include fictional materials among materials you're not allowed to publish, both in Canada and the USA. People have been tried, convicted, and had their lives ruined for possessing fictional material, both in Canada and the USA. There is every reason to believe that that will happen again in the future. Fictional material is not exempt.

arimareiji from 24.19.203.32 at Sat, 11 Aug 2007 19:42:39 +0000:
If this doesn't shock you into listening to what Matt is saying about the difference between legal theory and real-life consequences, I don't think anything will. Skip the first two paragraphs below if you want, they're just an object lesson in "make sure your reference means what you claim."

When I looked up www.nytimes.com/2007/08/10/us/10obscene.html , I discovered that it just was an article lightly mocking the fact that a couple of private citizens get paid $150k a year to run ObscenityCrimes.org. They're from Morality in Media, a conservative religious group, and got their Republican congressman to insert a clause earmarking money for them into some bill.

Perhaps unsurprisingly, "Department officials, however, seemed less than keen to talk about ObscenityCrimes.org. Spokesmen for the criminal division said officials there had nothing to do with the program, which they had been obliged to start because of the earmark." You can hardly blame them - the website has regurgitated over 67,000 complaints in a couple of years, which apparently was not exactly feasible to follow up on. Go figure.

But I was genuinely worried wondering what the real Dept of Justice is up to, so I looked up their website (usdoj.gov). One of their top priorities as listed is "Project Safe Childhood" (projectsafechildhood.gov)

Some people got upset because Matt allegedly conflated child porn and obscenity by pointing out that the DoJ has publicly laid out strategy to prosecute you on whichever charge sounds best at the moment. Here's real conflation: X-o

"... to combat proliferation of technology-facilitated sexual exploitation crimes against children. The threat of sexual predators soliciting children for physical sexual contact is well-known and serious; the danger of the production, distribution, and possession of child pornography is equally dramatic and disturbing."

To reiterate - in the eyes of the DoJ, as laid out in http://www.usdoj.gov/usao/eousa/foia_reading_room/usab5407.pdf, child porn and allegedly-obscene drawings of fictional alleged children ARE one and the same. And the real-life consequences of that will probably be extremely nasty, whether or not they can even prove a case.

Not only that, but their latest campaign (as referenced above) appears to even conflate online predators with allegedly-obscene drawings. You absolutely DON'T have to convince me that's ridiculous. I know it is. But what matters is whether or not DoJ decides to make your life hell, not that it's ridiculous for them to do so.

If you can stand the brain pain, here's a scary video introducing Project Safe Childhood:
http://www.projectsafechildhood.gov/ag_psc_announcement.htm

Michelle from 212.150.149.162 at Sun, 12 Aug 2007 10:47:14 +0000:
I read the article through and I must say that I heartily agree.

Lots of people may not wish to understand it, but fiction and art depicting sexual situations which include people who are, or who appear to be, younger than the age of consent is child porn. Even if the young people in question aren't real people.

I mean... Hentai, for goodness sake. It's as pornographic as anything will ever be (tentacles, people, tentacles!), the people there don't exist and from what I hear some don't even look like they might be anywhere near ages like 14-17.

True, I'm not entirely clear on whether Japanese people can draw such art of 13 year olds (13 being the age of consent there) legally, or whether it's legal for Americans to view such art or possess it... but I'm damn sure that Americans can't create it.

And this is coming from a proud Snape/Hermione (usually post-war, and always post-school) fan.

Matt from 67.158.78.159 at Sun, 12 Aug 2007 13:46:29 +0000:
Michelle - it's weird in Japan. Japanese society, and the legal system there, generally seem to tolerate almost anything as long as it's clearly fictional. That may be part of the reason for the North American assumption that we must have similar rules here too. However, Japanese obscenity standards forbid explicit depictions of genitalia, even of consenting adults. Japanese (legal, mainstream) pornographic movies have them pixellated out. Dave Barry wrote about Playboy-type magazines having all the pubic hair scratched out, although I've seen pubic hair in more recent Japanese pornographic material so it's pretty clearly not universally done anymore.

In 2004 there was a manga publisher convicted of obscenity for drawings that were "excessively realistic":
http://news.bbc.co.uk/2/hi/asia-pacific/3391951.stm
That conviction was upheld by the Japanese Supreme Court in 2005, with the suspended prison sentence changed to a 1.5million yen fine (about US or Can$150,000). Unfortunately, the news stories I linked to at that time seem to no longer be on the Web, but my comment about it is here:
http://ansuz.sooke.bc.ca/lawpoli/free-expression/honey-room.php

Also in 2004 there was a non-sexual manga censorship incident in which a publisher was leaned on to withdraw a manga that depicted the Nanjing Massacre "as if it really happened":
http://ansuz.sooke.bc.ca/lawpoli/free-expression/2004101402.php

There is a current campaign within Japan to crack down on sale of pornographic manga to young people. It's mostly focused on sale *to young people*, though; and there remains a bright line drawn between pictures of real and imaginary children. One story on that from 2005 here:
http://search.japantimes.co.jp/member/member.html?nn20050518f1.htm
and my comments on it here:
http://ansuz.sooke.bc.ca/lawpoli/free-expression/200505-japanese-murmurings.php

Crackdowns continue to the present day, but remain focused on providing this kind of material *to minors* rather than its mere existence:
http://www.animenewsnetwork.com/news/2007-06-09/kyoto-lists-harmful-manga

And in Thailand:
http://www.animenewsnetwork.com/news/2007-07-20/two-in-thai-maid-cafe-arrested-obscene-manga-seized

Tournevis (on lj and ij and gj) from 74.104.199.241 at Sun, 12 Aug 2007 17:47:02 +0000:
Wow!, I get named personaly!

Well, Matthew, I think you know that I dissagree with some of you intepretation of Canadian criminal law. I also think that, though mostly you are mostly right, you are overgeneralizing American Federal law (which does have great import in terms of online activity of course) and the various state laws and jurisdictions that do allow for significant variety as to "how" illegal things may be where in the US.

As for the issue of "publication", in both Canada and the US, the internet is not yet fully recognized as a tool for "publication" in the same sense as paper or television or radio, or audio media. There is a considerable grey zone in the law when it comes to online publishing and as of yet, no one has been prosecuted for putting fanfic online in either Canada or the US. But there have been people brought to court (in non-criminal courts) over publishing fanfiction on paper without permission. There have been threats of procecusion and a gazillion Cease and Desist letters as well, but no actual criminal procecutions of fanfic authors as of yet. Again, grey zone.

Will the laws change in the US and in Canada in the coming years to clarify these grey zones? Certainly. It is up to us, citizens, to ensure that the laws reflect reality and not the misconceptions of (for example) the right wing elements of each countries.

Crowdaughter from 84.189.110.246 at Sun, 12 Aug 2007 21:40:01 +0000:
I'm honored to have been personally addressed in this article, but may I asked to which circumstance I do owe this honor? You have me slightly troubled, here.

As for the content of the artickle, I agree with the fact that Six Apart setting strict TOS following the US law and enforcing them wiould be A VERY BAD THING, and that it is a good and necessary thing to support EFF, since the copyright law enforcement that is happening right now, and the other laws that endanger freedom of expression and the means to do so on the internet are very scary and need to be fought, both in the States as well as down here in Europe. I believe I said so before on several occasions. Still, how do I get the honor to be explicitly mentioned, here? Inquiring mind wants to know.

Aislynn

Crowdaughter from 84.189.110.246 at Sun, 12 Aug 2007 21:50:05 +0000:
Oh, dear! Should have read the comments before I posted my own. The script issue including the readers name in the post escaped my notice. It is a clever thing to get attention. What a wake-up call. Greatly done!

Aislynn

jaime29 from 71.227.118.134 at Sun, 12 Aug 2007 23:59:53 +0000:
Well stated, well argued... well done.

Sure there isn't a law professor in there somewhere?

pellsfan from 71.85.151.177 at Mon, 13 Aug 2007 01:15:40 +0000:
I was told about this and you had better get my user name out of your little spiel. How DARE you accuse me of pedophilia! All I write about is the hot weather! If you want to pick at people, you'd better make sure you're aiming at the right ones. Or is that the problem? Trying to shift the focus?

Or perhaps, just an attempt to get publicity since it is making sure the word is getting around?

Was I chosen simply because I answered the silly joke meme about LJ suspending everyone? Or perhaps it was because I was overjoyed when Sean Hornbeck was rescued from a REAL pervert!

Whatever it was I severely resent being used "without my permission" by someone with questionable motives.

gairid from 64.12.116.206 at Mon, 13 Aug 2007 02:19:24 +0000:
I'm wondering just why the hell you chose my name out of the many, many fandom people on LJ, singling *me* out when my personal journal has little to do with my fandom leanings (none of which have anything to do with Harry Potter.) I have never written anything ANYWHERE AT ANYTIME to do with pedophila or underage people having sex of any kind.

Stewardess from 66.92.7.80 at Mon, 13 Aug 2007 05:39:39 +0000:
Unfortunately for your argument, LiveJournal reviewed my fanfiction and concluded it did not violate their TOS or any US laws.

Nick T from 69.156.154.23 at Mon, 13 Aug 2007 11:57:23 +0000:
Wow, a lot of people didn't read the comments before posting; glad I didn't read this through livejournal.

At any rate, the whole legal issue that everyone keeps bringing up seems to be like a person wearing only socks claiming that they're not naked. Sure, you aren't naked, but that doesn't mean you won't be fined for indecent exposure.

Matt from 216.59.228.40 at Mon, 13 Aug 2007 12:09:14 +0000:
Marilyn Monroe supposedly once said "I did have something on during that photo shoot - the radio!" However, she knew she was joking.

Daughterofodhin from 131.91.168.31 at Mon, 13 Aug 2007 19:49:32 +0000:
You summed up pretty much how I felt. If you were referring to my heads up comment in the LJ Biz section about the article I read in the Rolling Stone Magazine... it's because I do not appreciate the tactics people like Perverted Justice used, and while I am not a member of fandom in general (oustide the fact that my favorite character is Wolverine, since I was 9), I have long thought that much of what fandom does (and I am sure some of my icons are) is blatantly illegal.

I do possess a permanent account, and while I have since gotten my money's worth, how much longer I chose to stay at 6A is in question. Not because the content was removed, but how they went about it, and how they did it, and how the covered up their mistakes and basically how they screwed it up completely.

Good synopsis though. More people need to read it.

Lizbet from 64.60.28.170 at Mon, 13 Aug 2007 20:10:29 +0000:
I'm terrified that people couldn't figure out that their LJ username was being collected by a script and actually thought that the writer of this essay had fingered them.

People. Really. You're not the center of the universe.

As for the rest, I'll repeat what I said in my own journal. If you want your Harry Potter fanart showing an arguably-underage character in a sexual situation with an adult to not get yanked from LJ, whining at LJ isn't going to do it. Activism that leads to a redefinition of what is a) allowable under copyright law and b) child pornography is the only thing that's going to do it. (And, let me just say: Good luck with that.)

Matt from 129.97.79.144 at Mon, 13 Aug 2007 20:26:57 +0000:
Marci and sheramil and a few others have the excuse that they are actual friends of mine who I could conceivably have had in mind. Most people here, not so much.

Sandra from 84.146.78.186 at Tue, 14 Aug 2007 16:53:42 +0000:
This is a really smart and interesting post, and I agree with most of it. But a point about the idea that fanfic is pretty much by its nature illegal, because of intellectual property laws...

I've been reading some professional blogs recently about how to break into the television scriptwriting business, and one of the most commonly acceptable ways to do this is to write a script for a television show already in progress.

You don't receive explicit permission from the show creators to do this - and you don't even send your spec script to the people who produce the show you used in your script. If I wanted to, say, write for Scrubs, I would send their team a spec script for, say, The Office or House or How I Met Your Mother.

In a very real way, this is simply writing fanfic - you are using someone else's intellectual property to create your own story around it. You are even doing it for the purpose of making a profit, in as far as you are trying to get a job.

Now of course, you wouldn't actually produce your Office or House script without permission from the show in question... but most fanfic writers are not trying to publish their work. They are simply trying to share stories featuring these established characters.

So how is writing a spec script different from fanfic? If I wrote a spec fic and posted it to LJ instead of sending it to the ABC Fellowship Committee, would it be illegal? More illegal than writing it in the first place? OK as long as it is in script form? If I posted it, got feedback, and then submitted it for a show, would that make it legal again?

Matt from 129.97.79.144 at Tue, 14 Aug 2007 17:04:37 +0000:
I think publication, as in distributing the derivative work to the public, is the difference between those two scenarios.

dragonet2 from 24.31.229.181 at Wed, 15 Aug 2007 02:48:51 +0000:
Even though my LJ name is mentioned near the top, I do not post or upload anything to my LJ that is not mine to upload freely. That is tarring innocent folk with a brush, stop it the fark out!

Azalais from 64.121.199.75 at Wed, 15 Aug 2007 05:46:08 +0000:
You must think you're pretty funny with that hack that makes every LJ user see their own name mirrored there.

But you're also very WRONG.

tree from 211.27.10.7 at Thu, 16 Aug 2007 09:23:32 +0000:
Actually Lulu does publish fanfiction. There are several novel -length Pride and Prejudice fics available there, not to mention all the commercially available ones. Of course, Jane Austen's work has moved into public domain, but those books are still fanfic.

Jamie from 66.32.130.192 at Thu, 16 Aug 2007 10:29:44 +0000:
Wow, you... you actually went to all the trouble of writing this as if you had any basis in fact. That's almost like fanfic, right? only not as rewarding, and without any actual point. Oh, well. Better luck next time.

Matt from 216.59.228.40 at Thu, 16 Aug 2007 11:47:28 +0000:
tree: interesting. In their FAQ, which I linked to, they say they forbid it. Maybe they make an exception when the original source is public domain, or maybe they just don't know about the particular works you have in mind. Like LJ, Lulu normally only investigates when they get a complaint. It's easy to find works on there that obviously do infringe copyright (the "Calendar" section often contains many of those) but it's a big step from being able to find such things and being able to say that they're allowed.

1) How many people were fooled by the script thing. I missed it because my browser blocks all scripts by default, so I cannot claim with certainty that I wouldn't have been fooled myself, but I'd like to think so.

2) How many people seem to really, truly think that other people's opinion of them doesn't matter. Maybe it's a North American thing, I don't know.

Go live in a society where you are a not-very-well-liked minority; a racial minority, say. Try eating at a restaurant, staying at a hotel, leasing an apartment, going to school, getting a job, or dealing with the law and/or other kinds of social services in a society where a) there isn't any legal protection for your sort of differentness or b) there is, but no-one is very motivated to enforce it. Then you'll get an object lesson in the broader Terrible Secret, of which Matt's Terrible Secret is a subset: *you only have such rights as other people are willing (however reluctantly) to grant you*. That includes the policemen, lawyers, judges, and jury members who oh-so-kindly enforce those rights for you. Except when they don't, because they, too, belong to the majority that doesn't like your kind of people.

That's what I'll call the strong formulation of the Terrible Secret; the weak formulation, which I also see elements of in Matt's article, is: *your freedom exists in the gap between what people could do to you if they wanted to, and the likelihood that they won't bother*. If no-one notices or cares what you're doing, you can act with relative impunity - at least until they begin to notice and/or care. What Matt is trying to ring alarm bells about is his perception that people soon will, or already have, started to both notice and care about fanfic.

Matt from 216.59.228.40 at Mon, 20 Aug 2007 12:30:43 +0000:
Meg - FWIW, the script is server-side. That is, the server that stores the Web page is instructed to check your Referer: [sic] header when you visit and insert your LJ username if it can guess it. By the time the page gets to your computer the script has already finished its task, so turning off Javascript and similar things on the client side (which IS a good plan for other reasons) won't have any effect in this case. The browser only sees flat HTML, except for the client-side script that makes the ad box go (which I'd prefer to eliminate, but it's a network requirement).

If you didn't see your name in the page, the most likely reason is that you didn't visit by following a link from a Livejournal friends page - it only appears when you do that. All the pages on my site are generated by server-side scripts (the ".php" file extension indicates that, though someone who wanted to conceal it easily could), and many other sites work the same way, including Livejournal itself with its ".bml" scripting. There's no security system being broken nor anything particularly unusual going on from a technical point of view. Part of what makes the trick so effective is that most people don't have a clear idea of what Web servers can and can't do, so it's magic, and you know about magic...

Ever seen one of those books for toddlers that go on for several pages about the Cutest Toddler in the World, and then as you turn the last page, you're going to see the Cutest Toddler in the World, and the last page is a mirror bound into the book? Right.

As for your other thoughts, I think Lila Futuransky's comment was apt: some of the people feeling outraged now are "people for whom being a geek and a fan is the only stigmatized identity they hold, so they're horrified to think that something they like might be illegal or disapproved of." Someone who's lived as let's say a gaijin in Japan may well be less likely to fall into that error. I think there's a very popular assumption here that the disenfranchised ones must be *other* people, not oneself. We see that, for instance, from the person who demanded that I make an exception for Harry Potter fandom because supposedly it's other fandoms, not that one in particular, that are the legally-threatened ones. A big part of my point is that trying to shift the problem to some other subset of fandom won't work: everyone in every fandom really does have to take the threat of a witch hunt personally.

The forces of evil aren't going to make fine distinctions over which fans are "perverts" and which are "perfectly okay and acceptable," and even if they did make such distinctions, the so-called pervert might well still be YOU. A lot of material that fandom tends to think of as "perfectly okay and acceptable" would actually end up in the black - not the grey - area of the obscenity evaluation.

baratron from 212.159.79.2 at Mon, 20 Aug 2007 19:05:08 +0000:
I must admit that I haven't been following the fandom wank too closely, but one issue that I haven't seen addressed is this: surely the majority of Harry Potter fics are set in the UK? The age of consent for both opposite- and same-sex sexual activity is 16 here, not 18.

I'm not disputing that fics exist where the young wizards are under the British age of consent, but many of them are set in the sixth & seventh years of Hogwarts - when almost all of the wizards are over the "Muggle" age of consent, and many of them are over the age of majority in the wizarding world. It seems odd to me to regard these as "child pornography".

Matt from 129.97.79.144 at Mon, 20 Aug 2007 19:45:17 +0000:
Interesting idea, but the Canadian and US statutes, at least, are based on a flat age of 18 - not "the local age of consent where the work is set." That does raise serious issues with regard to non-human characters, e.g. someone like Kes on Star Trek: Voyager, who is an adult of her species, looks like an adult human, engages in a sexual relationship with an adult of another alien species, but is a lot younger than 18 and can't reasonably expect to ever live to be 18. Note that that's all canon, not something fans cooked up. Conversely, someone from a very long-lived species (like the typical high fantasy "elves") might still look a lot like a human child despite being well over 18.

I think it's likely that courts would treat such characters as being humans of whatever human age they look like, so Kes is no problem and the elf-child would be a problem. But I'm sure there are people who think "Oh, that's an elf, not a human" is an Avoid Jail Free card. Who wants to volunteer to be the test case?

See:
http://ansuz.sooke.bc.ca/lawpoli/free-expression/2003012501.php (note that that's from 2003 and the proposed law under discussion at the time was revised a bit and then passed)
http://ansuz.sooke.bc.ca/bonobo-conspiracy/?i=40
http://ansuz.sooke.bc.ca/bonobo-conspiracy/?i=90

Cae from 24.93.143.103 at Sat, 13 Oct 2007 15:28:35 +0000:
You amuse me to no end.

Thassa from 68.146.219.184 at Tue, 30 Oct 2007 02:32:50 +0000:
Just posting to say I thought this was a good essay and I've linked to it from my LJ (link is in the URL area of course). :)

Angelica from 173.73.71.156 at Sat, 16 May 2009 11:47:50 +0000:
...Fanfiction is illegal, but isn't it illegal in that friendly "nobody will be caught" way that movies on Youtube and Napster and illegal downloads of webgames are? Wait... Napster got sued... *nervous laughter*

Matt from 216.59.249.45 at Sat, 16 May 2009 14:39:56 +0000:
Angelica: do note that I said "a lot of fan material is illegal." It's not as simple as it *all* being illegal. On the intellectual property front, yeah, it's probably on the same level as other copyright infringement and borderline copyright infringement that people mostly get away with. In the incident that sparked this article, though, the more serious issue was child pornography. That one gets people into real trouble. You can't pay a few thousand dollars out of court to the racketeers and have criminal child porn charges just go away, as you might be able to do with the RIAA.